Jeremy Bentham, The Works of Jeremy Bentham, vol. 7 (Rationale of Judicial Evidence Part 2) [1843]

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Jeremy Bentham, The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 7.
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An 11 volume collection of the works of Jeremy Bentham edited by the philosophic radical and political reformer John Bowring. Vol. 7 contains part 2 of the Rationale of Judicial Evidence.

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RATIONALE OF JUDICIAL EVIDENCE.

BOOK V.: —OF CIRCUMSTANTIAL EVIDENCE.

In relation to this, as to all other objects within the compass of this work, its business and aim is to bring to view the course which, it is supposed, ought to be taken by the legislator and the judge.

By the legislator, the result will be, that, under this head, in the way of regulation, very little ought to be done: done, viz. in such sort as to coerce, in the way of obligation (positive or negative,) the will and conduct of the judge.

What remains is, by apposite instructions, to hold up to view such considerations as promise to be of use, in the character of lights, to the understanding of the judge.

To the exercise of this function, power (political power) not being necessary,—it is capable, indeed, of being exercised by the legislator, but so is it of being exercised by anybody else. Addressed more immediately to the legislator, as the fountain of all authority, the judge is the person in whose conduct, if the instructions here endeavoured to be given are destined to have any influence, their influence will be more directly discernible. Instructions to the legislator, they are, at the same time, instructions as from the legislator to the judge.

Under the denomination either of circumstantial or of direct, everything to which the denomination of evidence is applicable stands included.

When all the evidence is of that sort which is termed direct, no part of it of the nature of circumstantial, the case is such as affords not room for any special inference—for any other inference than that general one, by which, from the discourse by which the existence of this or that fact is asserted, the existence of that fact is inferred, and credited.

When evidence of the circumstantial kind presents itself, and either no evidence at all of the direct kind, or none that is of itself sufficient without the aid of the circumstantial evidence; in every such case, inference—special inference—is necessary. Of some one fact at least (call it for this purpose the principal fact) the existence, with or without the aid of direct evidence applying immediately to that same principal fact, is inferred; viz. from the existence, as established by direct evidence, of some other fact; or more commonly from some cluster of other facts: call them, for this purpose, evidentiary facts.

In every case, therefore, of circumstantial evidence, there are always at least two facts to be considered:—1. the factum probandum, or say, the principal fact—the fact the existence of which is supposed or proposed to be proved—the fact evidenced to—the fact which is the subject of proof;—2. The factum probans—the evidentiary fact—the fact from the existence of which that of the factum probandum is inferred.

The principal fact is in its nature susceptible of two main distinctions: it may be—it cannot but be—either of a physical or of a psychological nature. If it be a simple one, it cannot be of both natures at once: if it include both, it must be distinguished by the name of a complex or compound fact; for in practice, its properties will in this case be found to be different from what they are in the other.

This same distinction is alike applicable, in every instance, to the evidentiary fact; and the occasions for applying it to that latter object will occur as frequently as the occasions for applying it to the other.

The same fact which, with relation to one fact, bears the relation of a principal fact, will, with relation to another (or even the Edition: current; Page: [2] same) bear the relation of an evidentiary fact.

In this way, a chain of facts, of any length, may be easily conceived, and chains of different lengths will be frequently exemplified: each such link being, at the same time, with reference to a preceding link, a principal fact, and with reference to a succeeding one, an evidentiary fact.*

In a chain of this sort, it becomes necessary to distinguish the several precedential or introductory facts (principal and evidentiary) from the ultimate principal fact. The ultimate principal fact occuptes that station only: it is the very fact sought: it is not viewed for the purpose of inducing a persuasion of the existence or non-existence of any other fact.

In all criminal cases, this fact is a complex fact; and in such case complex, as to include in its composition divers psychological facts, together with at least one fact of the physical kind, affirmative or negative.

In the case of direct evidence, the distinction between the principal fact and the evidentiary fact is alike applicable, and the union of the two alike indispensable, as in the case of circumstantial evidence. But in the case of direct evidence, the evidentiary fact is throughout of an uniform description. It consists in the existence of a person appearing in the character of a deposing witness, and, in the way of discourse, asserting the existence of the principal fact in question, on the ground of its having, in some way or other, come within the cognizance of his perceptive faculties.†

If, in order to make up a complete collection of the facts, the proof of which is necessary to afford a ground for the decision in question, there is no need of forming any conclusion—of drawing any inference—of deducing the persuasion of the existence of any one fact from the existence of any other fact—in a word, from any other source than the direct assertion of a deposing witness, speaking in the character of a percipient witness;—in that case, the proof consists wholly of direct evidence; and nothing that comes under the notion of circumstantial evidence forms any part of it.

But so long as the body of proof, to make it complete, stands in need of any inference (though it be but a single inference, and that ever so close and necessary a one,) in so far an article of circumstantial evidence forms a necessary part of it.

In a case regarded as criminal, the body of evidence (unless it consist of confessorial evidence) cannot, if complete, be composed solely of direct evidence: how satisfactory soever, it cannot but include a mixture of circumstantial evidence. For, to constitute a criminal act, one or more facts of the psychological kind are indispensably requisite: in most instances, the sentiment of consciousness, with relation to the existence of divers exterior facts; in all cases, intentionality, viz. the intention of bringing about the obnoxious event, or at least of doing the physical act by which it is produced or endeavoured to be produced.‡

To complete the body of evidence necessary to the proof of a criminal act, proof of psychological facts (one or more) is indispensable: but unless by the individual himself whose mind is the scene of them, no fact of the psychological kind can be proved by any direct testimonial evidence. Why?—Because, unless stated by the individual himself in whose mind the fact is considered as having place, the existence of any such psychological fact can only be matter of inference. What passes or has passed in my own mind, I know by my own internal consciousness, and without any inference: concerning what passes or has passed in the mind of Titius, I cannot know but by one or other of two means, viz. either from what he himself declares (so far as I credit what he says,) or from the observations I have had the opportunity of making on the subject of his exterior deportment.

In regard to a complex act of this class (the class of criminal offences,) direct testimony, therefore, consisting of extraneous testimony alone, cannot but be incompetent; or, at any rate, if a body of extraneous evidence be in itself complete, and (in its effects on the mind of the judge) satisfactory and persuasive, it will be so in part only, in the character of direct evidence; as to the other part (viz. in so far as any facts of the psychological class are proved by it,) in the character of circumstantial evidence.

In regard to the existence of facts considered Edition: current; Page: [3] in the character of principal facts, it is no uncommon case for the persuasion to be indicated, and to find credence, and that with reason, on the ground of circumstantial evidence alone, without the aid of any direct evidence. But it is seldom indeed that the body of evidence adduced in proof of any such principal fact, would, upon examination, be found to consist purely of direct evidence, unaccompanied by any admixture of circumstantial evidence.

This is so true, that, of a body of evidence (say the testimonial evidence of an individual deposing in the character of one who was at the time in question a percipient witness of the matter of fact in question)—of a body of evidence, delivered in the character of a body of direct evidence,—it is very rare that, upon examination, the whole would be found to consist of direct, without any admixture of circumstantial, evidence. Simple perception is the operation of sense; inference is the operation of the judgment. But, by the most constantly in exercise of all the senses, viz. sight, it is seldom that any belief of any matter of fact is produced, but that the judgment has been more or less at work in the production of it.*

The evidence afforded by any given mass of testimony is either direct or circumstantial, according to the relation it bears to the fact to which it is considered as applying. It is direct, in respect of any and every fact expressly narrated by it; and, in particular, every fact of which the witness represents himself as having been a percipient witness. It is circumstantial, in respect of any and every fact not thus expressly narrated by it; in particular, every fact of which the witness does not represent himself as having been a percipient witness, and the existence of which, therefore, is matter of inference, being left to be concluded from its supposed connexion with the facts spoken to by the testimony in its character of direct evidence.

The testimony of a witness operates as circumstantial evidence, not only in regard to all facts which, not having been actually perceived by him, are by him inferred from facts which he has perceived,—his testimony (or at least the fact of his giving utterance to such testimony) may operate further in the character of circumstantial evidence, in regard to facts which have neither been perceived nor inferred by him, but which are inferred by the judge, from the fact of his having uttered the testimony. In this case, the evidentiary fact is not the testimony itself, but the delivery of it by the witness.

In the character of direct evidence, the truth of any decision grounded on the testimony, will depend altogether upon the truth—the logical truth, the verity—of the testimony. If the facts are (whether knowingly or not knowingly) misrepresented by it, the decision will, in so far as the question of fact is concerned, be erroneous. In the character of circumstantial evidence, the truth of the decision will not depend upon the truth of the testimony: it will depend upon the truth, the justness, of the interence grounded on it; on the strength, the real strength of the connexion between the fact assumed (viz. the fact of the utterance of a mass of testimony, assertive of the fact purporting to be asserted by it,) and the fact inferred from that same assumed fact. If the inference grounded on the testimony be a just inference, the decision grounded on that inference may be a just decision, although the testimony which it has thus taken for its ground be false. A man suspected of a murder is interrogated on the subject of it by a judge: if, being guilty, he confesses the fact (including the several circumstances necessary to fix it upon himself as the author of it, and in the character of a crime,) there is no demand for inference—the testimony amounts to a full confession, and operates purely in the character of direct evidence:—if, being guilty, he does not confess the fact (he being at the same time pressed with the strings of questions which a man, acting on the occasion with an ordinary degree of zeal, probity, and intelligence, in the character of a judge, will not fail to ply him with,) the testimony thus extracted will almost always, or rather necessarily (in so far as he quits the intrenchments of non-responsion, or its equivalent, evasive responsion) contain a mixture of truth and falsehood. Now it is, that the testimony—not being, in respect of such part of it as is true, full enough to operate of itself with a conclusive force in the character of direct evidence—is consulted (as it were,) and made to operate further, in the character of circumstantial evidence; in which character it may be full enough to operate, and even conclusively; affording full satisfaction—generating a full persuasion,—although, in the character of direct evidence, it was deficient.

But on this occasion, such parts of the testimony as are false, may (in so far as they are understood to be false) contribute in support of the conclusion, just as much as the facts that are true. For, not only when the whole narrative is viewed together, in a general point of view, falsehood is, to the apprehension of every rational mind, a strong indication and symptom of delinquency—of whatever modification of delinquency the defendant on the occasion in question happens to be suspected of,—but, in respect of the details of the transaction, this or that particular falsehood (an assertion representing this or that fact as existing at the time and place in question, which did not exist at that time and place, or representing as not existing Edition: current; Page: [4] at the time and place in question a fact which, at that time and place, did exist) will afford an inference (and that frequently a conclusive and perfectly satisfactory one) establishing this or that particular truth—the existence of this or that fact which then and there did exist, or the non-existence of this or that fact which then and there did not exist.

From the foregoing elucidations, the definition of an article of circumstantial, as distinguished from an article of direct evidence, may be deduced as follows; viz.—

The principal fact being given, and being the same in both cases; the evidentiary fact, constituting the article of evidence—if it be of the nature of direct evidence (having for its source a person, to wit, a single person, and no more)—consists of an averment, statement, assertion, narration (all these mean the same thing,) made by that person, averring that, at a specified time and place, the principal fact in question came within the cognizance of his senses: such assertion being expressed either by words spoken, or by written discourse, or even by gestures (or modifications of deportment,) if such gestures were intended to convey an assertion to the effect in question, instead of its being conveyed by words.

In the same case (as above,) the evidentiary fact in question, if it be of the nature of circumstantial evidence, may consist either of some physical fact, from a real source, or (if from a personal source) a psychological fact;* such psychological fact having necessarily for its index, some physical fact, issuing from the same personal source.

CHAPTER II.: OF PROBABILIZING, DISPROBABILIZING, AND INFIRMATIVE FACTS—EXAMPLES OF PRINCIPAL FACTS, WITH THE CORRESPONDING EVIDENTIARY FACTS—IMPROBABILITY AND IMPOSSIBILITY, HOW DISTINGUISHED FROM THE OTHER KINDS OF CIRCUMSTANTIAL EVIDENCE.

When, of any principal fact in question, the existence is indicated by direct evidence (no objection presenting itself to the trustworthiness of the deponent by whom the existence of it is asserted,) it is said to be proved; and for the proof of every such fact by evidence of this description, a simple assertion, made by any one such person in the character of a deponent, is frequently (under English law at any rate) regarded as sufficient. The persuasion generated by it in the mind of the judge is of sufficient strength to give birth to a decision on his part; together with such acts of power, to which, on the occasion in question, a decision to the effect in question is in the habit of giving birth.

When, of the existence of the principal fact in question, no other indication presents itself than what is afforded by circumstantial evidence, it is seldom, very seldom, that by any single article of evidence of that description the fact is considered as being proved: it is seldom that by any one such article, standing by itself, a persuasion strong enough to constitute a ground for action is constituted in the mind of the judge.

By some greater number of such lots of circumstantial evidence, taken together, the fact may be said to be proved. Of the probative force of any one of them, taken by itself, the utmost that can be said is, that by means of it the fact is probabilized:—rendered, in a greater or less degree, probable.

As there are facts—evidentiary facts—by the force of which, a fact, considered in the character of a principal fact, is probabilized,—so it will generally happen that there are others by which the same fact may be disprobabilized:—the existence of it rendered more or less improbable.

When a principal fact is thus probabilized, it is by the probative force of the evidentiary fact: by the strength of the inference by which, the existence of the evidentiary fact being affirmed, the existence of the principal fact is inferred. A fact being, in the character of an evidentiary fact, deposed to and considered as proved, and the principal fact in question considered as being thereby, in a certain degree, probabilized,—it will often happen, that, by the bare consideration of some other fact, which is not proved, nor so much as attempted to be proved, the principal fact will be considered as being, in a greater or less degree, disprobabilized. Why? Because, if the existence of this disprobabilizing fact be supposed (it being itself, in the case in question, not impossible,) it will therefore be seen that, notwithstanding the existence of a probabilizing fact, the existence of the principal fact is not in so high a degree probable, as it would be if the existence of the disprobabilizing fact were impossible.

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Speaking with reference to the probabilizing fact in question,—any such disprobabilizing fact, thus contributing to weaken, to render infirm, the probative force of the probabilizing fact, may be termed an infirmative fact.

There are few, if any, probabilizing facts, in relation to which, one or more (commonly, if not constantly, more than one) infirmative facts would not, in case of an adequately diligent scrutiny, be found.

If, in one point of view, it be of importance that—in relation to all facts which, with reference to any of those principal facts on the credit of which a man’s station in society is disposed of, are wont to be considered in the character of probabilizing facts—the probative force should be perceived and rightly estimated;—in another point of view, it is a matter of correspondent importance that the several facts, bearing upon such probabilizing facts in the character of infirmative facts, should also be perceived as capable of having place, and the probative force of them respectively, be rightly estimated.

Among the facts which will be brought to view in the character of principal facts, is delinquency. Among the facts which will be brought to view in the character of evidentiary facts, are various facts, the nature of which (supposing them proved) is to operate, with relation to any principal fact of that description, in the character of circumstantial evidence. Among the facts which will be brought to view in the character of infirmative, and thereby of disprobabilizing, facts, are various facts, the force of which applies itself to divers of the facts just mentioned in the character of probabilizing facts, operating in that character with relation to delinquency.

In the instance of a fact of either description, supposing it either unseen, or the probative or disprobative force of it undervalued, the effect of such oversight or error may be fatal, with reference to one or other of the direct ends of justice. If the fact overlooked be a probabilizing fact, in relation to delinquency,—a wrongdoer may escape the burthen of punishment or satisfaction to which it was the intention of the law to subject him: if it be, in relation to any such probabilizing fact, an infirmative fact,—an individual who is not a wrongdoer may be subjected to punishment or the burthen of satisfaction as if he were.

In the case of delinquency, as in the case of a principal fact of any other description, the probabilizing facts in question (be it observed) are, by the supposition, not only brought to view, but proved; so that, in regard to these, all that, for the instruction of the judge, can be done by human industry, is to give what little instruction can be given in relation to their respective degrees of probative force. But, of any regard paid to any of the infirmative facts that respectively apply to these several probabilizing facts, the nature of the case affords no such certainty: it is in this instance, therefore, that the need of instruction is the greatest: it is by bringing to view the facts of this description, that, by hands unclothed with authority, the greatest service may be rendered to justice under the head of circumstantial evidence.

Overlooked they are in many instances not unapt to be. Accordingly, in the instance of one of the most illustrious luminaries of English law, an example will be seen,* in which, for want of due notice taken of the infirmative facts that bore upon the case, delinquency of the deepest dye (viz. murder) was considered as certain, in circumstances in which, regard being paid to those infirmative facts, it will perhaps, to a discerning eye, appear not more probable than innocence; at any rate, not to a sufficient degree probable, to afford a just ground for a judgment of conviction.†

To exhibit every fact capable of being considered in the character of a principal fact, together with every fact capable of being, with reference to it, considered in the character of an evidentiary (i. e. either a probabilizing or a disprobabilizing) fact,—and, moreover, every fact capable of being considered (with reference to such evidentiary fact) in the character of an infirmative fact,—would be to exhaust the stores, not only of jurisprudence, but of everything else that has ever borne the name of science.

For the purpose of the present occasion, a selection must therefore necessarily be made, and this even among the cases liable to call for decision at the hands of judicature: for, in one way or other, to whatever branch of science it belongs, there is scarce an imaginable fact to which it may not happen to be Edition: current; Page: [6] an object of research, for the purpose of a decision sought at the hands of judicature. Patents, by which temporary monopolies are granted for the encouragement of inventions, suffice of themselves to subject to the dominion of judicature almost the whole practical department of the field of physical science: wagers have power to subject to the cognizance of the same authority every proveable fact without distinction. By a wager concerning the existence of phlogiston, the whole field of chemistry might have been laid at the feet of the judge.

In the selection here made, the object has been, to take such examples as, by the frequency of their occurrence, and the extent of the ground which they cover in the field of law, promise to be in a more particular degree serviceable towards the prevention of the erroneous conclusions to which the function of judication (so far as concerns the question of fact) is exposed.

Here follow examples of facts, which, in the character of principal facts (facts on the belief of which judicial decision depends) are susceptible of being probabilized or disprobabilized by correspondent evidentiary facts or groups of evidentiary facts, constituting so many articles of circumstantial evidence, such as are in use to be deposed to, and considered as proved, in a course of judicial investigation.

I. Principal facts considered as probabilized:—

1. Delinquency in general; viz. any act by which the ordinances or supposed ordinances of the law (i. e. of the supreme power in a state) are transgressed. An enumeration of the several facts capable of serving, in the character of evidentiary facts, to probabilize a principal fact coming under this description (viz. the description of delinquency,) will be given in the sequel of this Book.*

2. Intention of performing any individual act belonging to a modification of delinquency, i. e. to a species of acts forbidden by law; and thence (when the fact so intended to have place has taken place,) the existence of such physical acts, as, on the part of the Edition: current; Page: [7] person in question, were necessary to cause it to have place.

For the correspondent evidentiary facts, see Chap. IV. of this Book.

3. Unauthenticity or unfairness (on one or both sides,) in the instance of a written instrument expressive of agreement or conveyance.

Correspondent evidentiary fact, non-observance of formalities; viz. of the formalities the observance of which has been made by the law a condition to its binding force.

By the laws by which these formalities have been appointed, the evidentiary fact here in question has in general been considered as conclusive evidence of the principal fact. Concerning the propriety of so peremptory a conclusion, see the book on Preappointed Evidence, and the book having for its subject the exclusions customarily put on various modifications of evidence.

4. Unauthenticity (total or partial) of any instrument being, or purporting to be, of ancient date.

For the circumstances capable of serving in the character of evidentiary facts to probabilize this principal fact, unauthenticity.—or (which is the same things in other words,) to disprobabilize the authenticity of the instrument,—see a table of evidentiary facts of this description, taken principally from Le Clerc’s Ars Critica.*

5. Posteriora priorum: any supposed antecedent acts in a number of supposed successive acts (whether forbidden by law or not,) considered as following one another in a supposed naturally connected series: for example, as being, or being supposed to be, conducive to one and the same end; such as, in a lawsuit, success, viz. on either side of the suit.

Correspondent evidentiary facts,—any acts proved to have been performed, and considered as having been performed in consequence of such supposed antecedent acts; for example, in pursuit of the same end.

See a table of evidentiary facts of this description taken from Comyns’s Digest of English Law.†

6. Priora posteriorum: any supposed consequent acts in a number of supposed successive acts, considered as following one another in a supposed naturally connected series, as above.

Correspondent evidentiary facts,—any acts proved to have been performed, and considered as having been performed antecedently to, and with the intention of their being followed by, such supposed consequent acts, as being means conducive to the same end.

See a table of evidentiary facts of this description, also from Comyns.

II. Principal facts considered as disprobabilized:—

7. (1.) Any supposed act of delinquency: any act made penal, or though but disreputable: especially if in a high degree.

The correspondent disprobabilizing evidentiary facts, are situations: viz. situations in which the supposed delinquent is capable of being found placed. In the sequel of this Book it will be seen, what situations can be considered to operate as circumstantial evidence probabilizing the existence of delinquency. Now, whatsoever situation exhibits the supposed delinquent as in a certain degree exposed to the danger of falling into the species of guilt in question,—by a situation opposite to that seductive situation he will in a proportionable degree he guarded and fortified against that danger.

8. (2.) Any supposed physical fact whatsoever.

Short and general expression for all supposed facts, considered in the character of disprobabilizing facts with relation to the supposed fact,—physical impossibility or improbability. These disprobabilizing facts follow, in each instance, the nature of the supposed principal fact. Any facts, considered as affording the indication in question, being supposed to be established, whether by special proof or by their own supposed notoriety,—there remains in each instance for consideration the question, whether the existence of the supposed principal fact is incompatible with the existence of the disprobabilizing facts?

The principal fact being considered as proved (viz. by such special testimony as, if not opposed by counter-evidence, would be regarded as sufficient for the proof of it;) the decision will in this case turn upon the supposed preponderance of probative force, as between special testimony (the testimony of the witness or witnesses by whom the supposed fact is deposed to,) and the supposed general testimony by which those facts which are regarded as incompatible with it are considered to be (as it were) deposed to: at any rate, as established on sufficient grounds.

Of the applications capable of being made of this modification of circumstantial evidence, the principal is that in which the extraordinary interposition of supernatural power is supposed: as in the case of sorcery, witchcraft, and such other operations, real or supposed, as have been designated under the general name of miracles.

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9. (3.) Any supposed psychological fact whatsoever; i. e. any supposed fact, the supposed seat of which is in the mind of this or that individual human being.

The term impossibility is in this case omitted. The reason is, the want of uniformity and consistency on the part of all psychological facts as compared with physical ones. Correspondent and opposite to impossibility, is certainty. But the case of insanity is of itself sufficient to prevent any state of the human mind from being considered in any instance as certain: and of insanity there are gradations innumerable; many of them, at that end of the scale which is next to sanity, scarce distinguishable from it.

The last-mentioned species of circumstantial evidence—improbability or impossibility—has in its nature something peculiar. In all the other kinds of circumstantial evidence, the evidentiary fact (whatever it be—positive or negative) is at any rate something entirely distinct from, and independent of, the principal fact, the fact to be proved. In the case of improbability or impossibility, the evidentiary fact is not another and a distinct fact: it is no other than a property, or supposed property, of the principal fact itself; to wit (as will hereafter be seen,) the property of being contrary to the order of nature.

Circumstantial evidence, therefore, may with propriety be distinguished into that which is afforded by other facts, and that which is afforded by the nature of the fact itself that is to be proved.

For the illustration of the first of these modifications of circumstantial evidence,—taking for the principal fact, delinquency, considered in a general point of view,—I shall bring to view the several classes of probabilizing facts bearing relation to it; accompanied with an indication of such facts as present themselves in the character of infirmative facts with relation to such of the above-mentioned probabilizing facts as are exhibited in a state particular enough to be susceptible of any such particular indications.

This done, from the mass of particular considerations thus brought to view I shall deduce such considerations of a general nature as promise to be of use in the way of instruction, either to the legislator or the judge; for which purpose, the matter afforded by such of the circumstantial evidences as have for their principal fact delinquency, will, it is supposed, suffice.

I shall then pass to the consideration of that kind of circumstantial evidence which is afforded by the nature of the principal fact itself; viz. improbability and impossibility.

CHAPTER III.: OF REAL EVIDENCE, OR EVIDENCE FROM THINGS.

§ 1.: Of the nature and extent of real evidence.

Byreal evidence, I understand all evidence of which any object belonging to the class of things is the source; persons also included, in respect of such properties as belong to them in common with things.

The properties of things are the subject-matter of the different branches of physical science. A work having for its subject any such branch of science, is, as to a great part of its contents, a treatise on circumstantial evidence. In this point of view, this comparatively small portion of our field of inquiry is of itself infinite.

On the present occasion, the inquiry is limited to the field of law. Even after this limitation, however, there is scarce an imaginable distinction or observation, an indication of which could, with reference to the subject of the present work, be charged with being altogether irrelevant: for, in one way or other, and even in each instance in various ways, there is not an imaginable fact, the existence of which is not capable of being taken for the subject of inquiry in a court of judicature. No imaginable fact (for example,) the existence of which may not (unless in case of legal prohibition interposed for special reasons) have been taken for the subject of a wager: on which occasion, whether the wager has been won or no by Titius, may become a question to be determined by a court of law. Add to this, the case of a premium offered for an invention or discovery; the case of a claim put in to the sort of temporary monopoly granted to inventors for the encouragement of inventions; and the case of a question whether a contract, respecting the practice of any branch of art, or the affording instruction in relation to any branch of science, has been properly fulfilled. Of the evidence that on any of these occasions may come to be exhibited, a portion more or less considerable (if not the whole) will come under the notion of the species of evidence already distinguished under the appellation of scientific evidence: but it is not the less true that the facts brought to view on such occasions respectively, are brought to view in the character of evidentiary facts, and are included in the field of legal evidence. If, therefore, the whole Encyclopædia were to be crowded into the body of this work, and into this part of it in particular, there is not a page of it, that (if relevant with reference to the particular branch of art or science of which it undertook to treat) would, strictly speaking, be irrelevant—could be justly chargeable with being altogether irrelevant—with reference to the subject Edition: current; Page: [9] of this work. But, as the duration of human life, as well as human powers (psychological and physical,) has its limits; it becomes matter not only of convenience but of necessity, to mark off and abandon to the labours of their respective professional and other appropriate cultivators, these several distinguished and pre-eminent portions of the field of evidence.

Even in the more limited field opened by the penal branch of law,—a prodigiously ample and diversified demand, a demand scarce susceptible of limitation, will be seen to present itself. Cases of homicide and personal injury (not to mention at present a great variety of other cases,) are sufficient of themselves to draw deep upon the stores of medical science: cases of monetary forgery upon the metallurgic branch of chemistry: cases of scriptural forgery, upon the arts of the engraver, the paper-maker, the letter-founder, the ink-maker, and (through one or other channel) upon the stores of chemistry.

Of all modifications of real evidence, the human body is that source which will serve best for exemplification: the matter afforded by it being at the same time of the most interesting nature, susceptible of the greatest variety, and capable of being brought to view in the smallest compass, proportionally to the importance of the instruction conveyed by it. The following table is a translation, nearly literal, of the heads offered in Plink’s Elementa Medicinæ et Chirurgicæ Forensis, Vienna, 1781. A few articles are omitted; some as not being applicable to the present design; others as referring to vulgar errors, which, at this time of day, no longer threaten to be productive of errors in judicature.*

Questions belonging to the cognizance of criminal tribunals:—

I. Signs of homicide, by

1. Wounds.

2. Contusion.

3. Hanging.

4. Drowning.

5. Suffocation.

6. Poison.

7. Unskilful practice (medical or chirurgical.)

8. Suicide.

II. Signs of infanticide, by

1. Wounds.

2. Contusion.

3. Suffocation.

4. Starving.

5. Cold.

6. Heat.

7. Drowning.

8. Omission to tie the navel-string.

9. Omission to administer medical remedies against debility.

10. Abortion purposely procured.

III. Signs indicative of ability or inability to endure divers corporal inflictions, for the purpose of punishment or compulsion.

IV. Grounds of exemption from punishment on the score of infirmity (bodily or mental) existing at the time of the act of delinquency.

Questions belonging to the cognizance of civil tribunals:—

1. Signs disproving alleged paternity.

2. Signs disproving alleged maternity.

3. Signs of a child’s being born alive.

4. Signs of a child’s being born dead.

5. Signs of a child’s being born at full time.

6. Signs of prematurity of birth to a degree not inconsistent with continuance of life.

7. Signs of prematurity of birth to a degree inconsistent with ditto.

8. Signs of birth at a period so late as to be incompatible with alleged paternity.

9. Signs of a supposititious child.

10. Signs of a child conceived in the way of superfœtation,

11. Signs of the first born among twins, &c.

12. Signs of fictitious pregnancy.

13. Signs of concealed pregnancy.

14. Signs of real parturition.

15. Signs of fictitious parturition.

16. Signs of defloration.

17. Signs of rape.

18. Signs of particular ages.

19. Signs of divers fictitious diseases.

20. Signs of divers concealed diseases.

21. Signs of false imputation of disease, in divers instances.

Questions belonging to the cognizance of ecclesiastical tribunals:—

1. Signs of barrenness in females.

2. Signs of impotence in males.

3. Signs of monstrosity.

4. Signs of doubtfulness in regard to sex.

For the reasons already stated, the inquiry is in the present instance limited to the penal branch of law. The fact sought, and concerning which on each occasion the question is, whether it be evidenced or no, is delinquency: the evidentiary facts are any and every fact, considered as capable of operating in that character with reference to the fact sought.

Division of things, considered as sources of real evidence: the source of the division being the nature of the relation they respectively Edition: current; Page: [10] bear to the fact of delinquency, considered as the fact indicated.

I. Subject-matter of the offence itself.—1. The person killed or hurt. 2. The thing stolen or otherwise taken in the way of depredation, or damaged, or destroyed. 3. The instrument of contract fraudulently uttered or fabricated. 4. The genuine money diminished: the counterfeit money fabricated.

II. Fruits of the offence.—In the case of depredation above mentioned, it is the goods taken in the way of depredation which constitute the immediate fruits of the offence: in the case of forgery of written instruments, and monetary fabrication, it is the profit, in whatsoever shape obtained: in the case of subduction by monetary forgery, it is the quantity of valuable matter subducted.

III. Instruments of the offence.—Examples:—1. In the case of homicide or other bodily injury,—the pistol, sword, club, knife, or other weapon: in case of poisoning,—the poison. 2. In case of depredation by house-breaking,—the picklock keys, the crow or chisel, the ladder. 3. In case of incendiarism,—the combustibles. 4. In case of forgery,—the engraved plates, the instruments for the fabrication of the appropriate papers. 5. In case of monetary forgery,—the coining tools.

IV. Materials of the subject-matter of the offence, or of the instruments of the offence, when they happen to have anything appropriate in their nature, exclusively or peculiarly fitting them for being converted into instruments of the offence.—Examples:—1. Silver or gold, in plates, or other suspicious forms, where coining is the offence in question. 2. Laurel leaves for distillation, where poisoning is the fact in question. 3. Drugs calculated for the purpose of adulteration, found in large quantities in the possession of a dealer in the article which such drugs are capable of being employed to adulterate.

V. Receptacles inclosing or having inclosed (as above)—1. The subject-matter; 2. the fruits; or 3. the instruments, of the offence.—Example:—1. The clothing of the person killed or hurt; 2. the house, ship, room, closet, stable, waggon, chest of drawers, package, case, in which the goods stolen, damaged, or destroyed, or the instruments or materials of the offence, were contained.

VI. Circumjacent (detached) bodies. Bodies circumjacent (though detached,) with reference to any of the objects above enumerated.—Examples:—The floor on which the person killed or wounded was standing; the chair on which he was sitting; the bed on which he was lying; the pathway spotted by his blood.

It is in virtue of some peculiarity in their condition, that the things in question are qualified to become sources of real evidence; evidentiary facts, with reference to the modification of delinquency in question—the fact indicated.

This condition may to the purpose in question be distinguished into relative and absolute: relative, bearing to the person in question any such relation as has the effect of indicating him in the character of the delinquent; absolute, indicating (without any indication of the person) the existence of the obnoxious event (the death, the damage to property by fire or other cause,) coupled or not with the indication of its being referable to human delinquency as its cause.

Physical real evidence (whether issuing from a real or from a personal source) requires to be distinguished into immediate, and reported. I call it immediate, in the case where the thing which is the source of the evidence is made present to the senses of the judge himself. I call it reported, in the case where it is not made present to the senses of the judge himself,—but the state of it in respect of the evidence, the evidentiary facts, said to be afforded by it, is presented to the judge no otherwise than by the report made of it by a person, by whom (in the character of a percipient witness) the state and condition of it in respect of the evidentiary facts in question is reported by him to have been observed.

In the case of immediate real evidence (as above described,) the evidence is of the circumstantial kind purely: it is a case of purely real, purely circumstantial evidence. In the case of reported evidence, it is of a compound or mixed kind, composed of supposed real evidence exhibited through the medium of personal; of circumstantial, exhibited through the medium of direct, evidence. To the reporting witness indeed, if his report be true, it was so much immediate, so much pure real evidence: but to the judge it is but reported real evidence.

The distinction is far from being a purely speculative one: practice requires to be directed by it. Reported real evidence is analogous to hearsay evidence, and labours more or less under the infirmities which attach to that modification of personal evidence, compounded of circumstantial evidence and direct,—of real evidence, and ordinary personal evidence (evidence given in the way of discourse:) it unites the infirmities of both. The lights afforded, or said to have been afforded, by the real evidence, are liable to be weakened in intensity, and altered in colour, by the medium through which it is transmitted: a topic which will come to be considered in the Book which treats of makeshift evidence.

From this infirmity results an obvious practical rule—viz. not to receive real evidence in the form of reported real evidence, when, without preponderant inconvenience, it can be had in the form of immediate real evidence: Edition: current; Page: [11] a rule exactly analogous to that which is alike obvious in the case of the analogous species of evidence called hearsay evidence. But of this elsewhere.

§ 2.: Infirmative five facts applicable to real evidence.

The evidentiary (i. e. the criminative or inculpative) facts belonging to this class being in so prodigious a degree multifarious,—in a correspondent degree multifarious must be the facts that apply to them respectively in the character of infirmative facts.

Yet, except in so far as the connexion between the principal fact and the evidentiary fact is necessary, there is not one such evidentiary fact but must have its correspondent infirmative facts, by the possibility of which its probative force is diminished.

Not that facts are altogether wanting, which (the evidentiary facts being by the nature of the principal fact so many criminative or inculpative facts) are applicable in common to all evidentiary facts belonging to the class of real evidence.

Of the infirmative facts of this description, five examples may be designated as follows, viz.—

1. Accident. The appearance unquestionable, but not having for its cause any agency of the supposed delinquent, directed to the production of the forbidden result in question: being produced either by causes purely physical, or (if with the intervention of any human agent acting in pursuit of any end) produced either by some other person, or by himself in pursuit of some unforbidden end.

2. Self-exculpative forgery in relation to real evidence (viz. the evidence composed of the appearances in question,) committed by some other person, guilty either in respect of the offence in question or some other offence. See, further on, Forgery in relation to Real Evidence.

3. Like forgery committed by some other person, who—though not guilty in respect of the offence indicated by the real evidence in question in its genuine state—yet, under the apprehension of the indications it affords to his prejudice, alters the appearance in question, with a view to the doing away of those indications.*

4. Like forgery committed by another person, in the view of subjecting the defendant to the imputation in question for a malicious purpose; i. e. for the purpose of causing him to suffer (either at the hand of the law or in the way of reputation) as if the offence in question had had him for the author of it or a partaker in it.

5. Like forgery committed in sport; i. e. without any design to subject the individual in question either to legal punishment or lasting disrepute, but only to momentary alarm.†

§ 3.: On the circumstantial evidence of delinquency, afforded by the possession of an article of criminative real evidence.

Nothing is more familiar than the word possession; nothing more variable and indistinct than the ideas which are wont to be attached to that word: but, in so far as on any occasion it is considered as being applicable in such sort that a thing considered as a source of criminative real evidence, being such in relation to the supposed delinquent in question, is considered as being in his possession,—in so far is the relation indicated by the word possession apt to be considered as evidentiary of delinquency in his instance. Of this species of criminative circumstantial evidence, possession of stolen goods affords the most obvious and frequently exemplified case.

Of possession of criminative evidence, the probative force will be liable to be varied according to a distinction expressible by the terms actual and antecedent: actual, when at the very time in question, the thing in question is supposed to be found in possession of the supposed delinquent; antecedent, when it is only supposed to have been in his possession at some antecedent point of time.

In the latter case, its identity is supposed, but is liable to become the matter of an additional question: in relation to which question, this or that supposed intrinsic mark of ownership, designed or undesigned, will frequently present itself in the character of an Edition: current; Page: [12] article of real evidence, serving to probabilize the supposed fact in question; viz. that the thing which is not now, was at some antecedent point of time, in the possession of the supposed delinquent.

To possession of criminative real evidence, in its character of a fact evidentiary of delinquency, apply, in the character of infirmative facts, those five which we have seen applying to real evidence itself when considered as criminative.

Additional infirmative facts applying to possession of criminative real evidence, and not to the real evidence itself, are—

6. (1.) Unconsciousness: when, though the situation of the thing in question is or has been such as to warrant its being said to be or to have been in the possession of the supposed delinquent, he himself has never been conscious of its being so: a state of things that may naturally enough have been brought into existence by any of the five causes enumerated (as above) under the head of real evidence.

7. (2.) Clandestine introduction. Subsequently to the introduction of the thing into the place by its introduction into which it is put into his possession, he becomes conscious of its being there; but, of the operation by which it was introduced, he had not, while the operation was going forward, any knowledge.

8. (3.) Forcible introduction: when it was with his knowledge indeed, but against his declared or known will, that the thing in question was placed in that situation in which it is considered as being in his possession: as, if by conspiracy among three men against one, one lays hold of both his hands, another puts into his pocket a stolen handkerchief, which the third, running up during the scuffle, finds there.

By the circumstance of force, supposing it proved, the criminative effect of possession (as above) would be destroyed altogether: but what may happen is, that the possession shall have been proved, when the force is not proved.

9. (4.) In case of supposed antecedent possession (as above)—non-identity of the thing in question. The man is seen running, and, on the path which he has been taking, a handkerchief is seen lying. A handkerchief resembling it had been seen in his hand; but though similar, it was not the same.

10. (5.) Furtherance of justice: receipt or seizure of the thing in question, in the view of applying it to its use in the character of a source of criminative evidence: as in the case of an official minister of justice so demeaning himself in the execution of his office, or an individual volunteering his services to the same effect.

Nothing can be more persuasive than the circumstance of possession commonly is, when corroborated by other criminative circumstances: nothing more inconclusive, supposing it to stand alone. Receptacles may be contained one within the other, as in the case of a nest of boxes: the jewel in a case; the case in a box; the box in a bureau; the bureau in a closet; the closet in a room; the room in a house; the house in a field. Possession of the jewel, actual possession, may thus belong to half a dozen different persons at the same time: and as to antecedent possession, the number of possible successive possessors is manifestly beyond all limit.

Connected with this subject, is the consideration of the probative force of possession of criminative written evidence.

When written evidence—such as (supposing it to have for its author the supposed delinquent) would, in the character of confessorial evidence, tend to induce a persuasion of his being guilty of the offence in question—is found in his possession,—the mere circumstance of its being in his possession will of itself, if separated from the circumstances that are so apt to be connected with it, scarce be capable of possessing criminative force sufficient to entitle it to the denomination of criminative evidence.

If, indeed, possessing with regard to him this criminative tendency, and speaking in his own person, it appears upon the face of it to be written with his own hand (as in the case of a memorandum written for his own use, or a letter written by him and intended to be sent to the person to whom it is addressed, but not sent;) there is no doubt that—if, being spoken, it would have amounted to self-criminative (i. e. to confessorial) evidence—it will, being written, amount to no less. But, in this case, its criminative force depends altogether upon what it contributes in the character of confessorial evidence, towards inducing a persuasion of his having been concerned in the forbidden act. From the circumstance of its being found in his possession, it can scarce be said to derive any probative force over and above what it would have possessed if found anywhere else: if, for example, being a letter, it had been sent to the person for whom it was designed, and by him produced in evidence.

It being still of such a nature as (had it for its author, as above, the supposed delinquent, and were it spoken in his person) would operate against him in the character of confessorial evidence; suppose it were to have for its author another individual, writing and speaking of the criminal transaction in question, whether in the character of an accomplice or an accuser. With a probative force proportioned to the strength of the indication afforded by it, and to the trustworthiness of the writer, it would operate in the character Edition: current; Page: [13] of the weak and makeshift species of evidence which will be brought to view in the next Book, under the name of casually-written or written casual evidence. But, from the circumstance of its being found in the possession of the supposed delinquent, it would scarcely derive any probative force, over and above what it would have possessed, if, in its way to his house, it had been intercepted—(for example, at a post-office.)

Addressed to him by word of mouth—or even, although not addressed to him, if spoken in his presence—a discourse of exactly the same tenor might have operated against him with a considerable degree of probative force. Why? Because—when the supposed delinquent and the virtual accuser were (at the time of uttering the virtual accusation) in presence of each other—not only the motive to contradict the accusation in case of its falsity, but the opportunity, the opportunity for immediate contradiction, exists. Noncontradiction of criminative discourse operates therefore as evidentiary of confession; though not without standing exposed to the debilitative force of various infirmative facts. But, where the form of the criminative discourse was in writing, and the parties not in presence—the opportunity of immediate contradiction not having place—the circumstance of the writing’s being found in the possession of the individual so addressed by it, scarce affords, of itself, any the slightest inference.

In the case of real evidence, possession may indeed, and not unreasonably, be considered as operating in the character of a criminative circumstance. Why? Because, by possession of things fit for use, a most natural (though sometimes not an infallible) presumption is afforded of actual use and ownership: including under the head of use, in the case of a mercantile man, sale, as being a mode of using particularly adapted to his situation in life.

But, as in the case of real evidence a man’s having possession of a thing of any sort affords of itself scarce any presumption of his having made it,—so, in the case of written evidence, mere possession of a manuscript of any kind, not being in his own handwriting, affords scarce any presumption of his having been the author of it. In regard to writings, as in regard to chairs and tables, possession is good evidence of ownership: but of the possessor’s being the author of the writings, it is not much better evidence than of his having made the chairs and tables.

True it is, that, where the authorship has for its proof similitude of hands (which is a sort of real evidence.) possession adds probable force to it. Why? Because, if it be extraordinary that writing, bearing such a degree of resemblance to that of Reus, should not be his, it is still more extraordinary that writing bearing such a degree of resemblance to that of Reus, and moreover found in his possession, should not be his.

Taken by itself, so weak is the probative, the criminative force of written evidence (understand all along such written evidence the tendency of which is to fix the imputation of the offence in question on the individual in whose possession it happens to be found,) that it is scarce susceptible of being rendered weaker by the consideration of any facts operating in the character of infirmative facts. But the infirmative facts capable of applying to it are of the same nature as those which have been seen applying to the case of possession of real evidence at large, when considered in respect of the criminative force with which it is capable of operating.

So far as concerns clandestine introduction (so it exceed not a certain magnitude,) a mass of written evidence possesses a means peculiar to itself for being introduced into a man’s possession without his consent or privity. It may have come, for example, by the post, addressed to himself: it may have come by the post addressed to some inmate of his, and thus remain in his possession for any length of time without his knowledge.

“On such an occasion” (naming it,) “my dear friend, you failed in your enterprise;” an enterprise (describing it by allusion) of theft, robbery, murder, treason: “on such a day, do so and so, and you will succeed.” In this way, so far as possession of criminative written evidence amounts to crimination, it is in the power of any one man to make circumstantial evidence of criminality in any shape, against any other.

It has perhaps very seldom happened that written evidence, tending to criminate a man in respect of the crimes in question, has been found in his possession, but there has been good and sufficient reason for regarding him as guilty. But, in these same cases, the principal reason has been constituted, not by this of possession, but by similitude of hands, or by other evidence.

Supposed facts that belong not to this head are apt to be urged in the character of infirmative facts, for the purpose of encountering the criminative circumstantial evidence constituted by possession of written evidence of the nature here in question. Such are—

1. Irrelevancy of the discourse, either with reference to delinquency in general, or with reference to the particular species of delinquency, or individual act of supposed delinquency, in question.

2. Unauthenticity of the script purporting to be in the handwriting of the supposed delinquent.*

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§ 4.: Of interrogation, as an instrument for supplying the deficiencies of real evidence.

In the character of criminative evidences, besides the special and contingent infirmities to which they are respectively liable, the several mute evidences which compose the subject of this chapter have, as such, several infirmities in common:—1. The indications they afford are particularly apt to be incomplete. By written evidence, to which it happens to be found in the possession of the supposed delinquent, the lights afforded may be to any degree broken, imperfect, inconclusive. 2. From the intrinsic nature of these mute evidences, by which their criminative force is exposed to the opposition of so many infirmative facts, arises the question—a question that forces itself upon every rational mind,—these several possible infirmative facts, in the individual case in question, have they, or any of them, actually had place?

For filling up the above-mentioned deficiencies, for clearing up these last-mentioned doubts, the nature of things has provided one and the same natural and naturally efficacious instrument—interrogation.

On this, as on all other occasions, the way to know is to inquire: a proposition that from the beginning of the world to the present day has never been a secret to any human being, unless it be to English lawyers. And of whom to inquire? Of whom, but of the one person in the world, who, if the fact be in existence, cannot fail to know of it?—the one person in the world, in comparison with whose evidence, every other imaginable species of evidence, direct or circumstantial (except in so far as this naturally best evidence happens, by the force of sinister motives, to be driven into mendacity,) is a miserable makeshift: insomuch that if, on the score of hardship to the person so interrogated, there were any rational objection capable of applying to the extraction of the evidence from this most direct, and (in case of confessorial responsion) most trustworthy, of all sources,—it would operate, and with augmented force, to the exclusion of all other evidence.

The case in which the written evidence is confessorial, as compared with the case in which it is extraneous, here presents a difference. In the case of confessorial written evidence, the author of the writing and the possessor of it are but one person: there is not, therefore, of necessity more than one person of whom to inquire concerning it. In the case of extraneous written evidence, there are at least two persons: the person in whose possession it is supposed to be, and the person whose writing it is supposed to be. These two at the least: add to whom (in the case of a script purporting or supposed to be a transcript, or written from dictation,) the original writer or dictator, on the one hand; the transcriber or amanuensis, on the other.

Of these two persons, the possessor and the writer (dismissing, for simplicity’s sake, the accidental decomposition of the writer into the original and the derivative writer as above,) it may happen to the latter to be no longer forthcoming in such sort as to be subject to inquiry: death, imbecility, or expatriation, may have put him out of reach. In this case, the imperfect evidence, which to false science and blind prejudice has been the object of exclusive choice, is left by necessity in the character of the only receivable, because the only obtainable, evidence from that same source.

But, in the case of confessorial evidence, where the possessor of the evidence and the writer are one and the same person, if he be also the defendant, and in that character forthcoming, this first resource, the faculty of inquiring, remains accessible.

On this same occasion, there remains in both the above cases yet another sort of person, who, when the process of inquiry is going on, ought not to pass unheeded. This is the person, whosoever he may be (in the ordinary course of things, an official person,) by whose instrumentality the papers, which it was so much the interest of other persons to conceal, have been brought under the eye of justice. The papers produced in the character of criminative evidence, whether confessorial or extraneous, are all genuine. Be it so:—but the papers which thus are produced, are they all the papers that, in the character of evidence in relation to this same supposed delinquency, could have been produced? These are criminative: but did the same possession, or any other within the reach of the searchers, afford no others that were exculpative? These are questions which common sense, in aid of common probity, cannot fail of pressing upon the minds of all parties concerned; but to which the system of English procedure affords no adequate and all-comprehensive means of obtaining answers.

In pursuance of one of the most mischievous conceits that ever entered into a lawyer’s head—one of the most absurd if justice, one of the best imagined if injustice, were the object,—the above sources of necessary explanation have in great measure been cut off: and always to the prejudice of justice, on whichever side of the cause seated.

By the responsive testimony of the defendant, the existence of the criminative fact cannot be established, nor the clouds that hung over it be cleared up, because no man is to be compelled to accuse himself.

By the responsive judicial testimony of the same person, neither can the existence of any of the above-mentioned infirmative facts be established, nor the clouds that hung over it Edition: current; Page: [15] be cleared up; because no man is to be a witness in his own cause.

If it were by a plaintiff in the cause that a mass of evidences—partly inculpative, partly infirmative with relation to the criminative facts, or in any other way exculpative—were discovered and made forthcoming,—he produces what he pleases, he suppresses what he pleases: master at the same time of an accusation and a defence,—he produces the accusation, he suppresses the defence. Why?—Because no man is, with or against his will, to be a witness in his own cause.

Of these mischievous maxims, the breach is as notorious, and perhaps as extensive, as the observance, but, broken as they are, there remains force in them to do mischief in deplorable abundance, as well by their application to this topic, as to a multitude of others.*

§ 5.: Forgery of real evidence.

When the appearance of things leads to wrong conclusions, the deceit will sometimes be the pure work of nature, at other times the work of human artifice.

The former case is exemplified but seldom; when it is, its birth may, in the language in use among naturalists, be ascribed to the play of nature.

The irrational animals may be ranked, and to this purpose without injury, in the class of things. A case which, whether real or fictitious, is famous in the history of French jurisprudence, may serve for illustration to an English eye. There, as elsewhere, magpies have been remarked for a propensity to pick up and hide not food only, but other articles, though of a nature not applicable by these hoarders to any ascertainable use. An innocent person was accused of stealing from the house of a neighbour several pieces of gold, and, being convicted, suffered an ignominious death. The real thief was a magpie, which, without the privity of its master, had taken the money at different times, piece by piece, from the too accessible hoard of a neighbour, and deposited it in a place inaccessible to any other than the unfortunate person who suffered as for stealing it.

When the deceit is the work of art—has human artifice for its cause—it may be ranked with forgery: the act by which deceit is produced, or endeavoured to be produced, may be termed forgery of real evidence.†

In another, though a nearly related, point of view, forgery of real evidence is to real evidence what subornation is to personal: it is an attempt to pervert and corrupt the nature of things, of real objects, and thus force them to speak false. Of themselves the things are silent, or, if they speak, speak to the inculpation of the defendant: by the force he applies, a thing that was silent is made to depose falsely—a thing that was speaking against him is either made to speak in his favour, or at least put to silence.

As well in the case of real evidence as in the case of written evidence, forgery is susceptible of one main distinction—into fabricative and obliterative. The case where, in the employment of expedients of this kind, the endeavour of the criminal is simply to remove the imputation from himself, without seeking to fasten it on anybody else, is as common as the other case is rare. Whatever be the crime, a main object of the endeavour of the criminal is of course to expunge, as effectually as possible, all traces of the commission of it. The hands, the garments of the murderer, have they received a stain from the blood of the deceased? The most obvious reflection suggests the removing the stain from everything from which it can be removed, and the destroying or hiding anything from which it cannot be removed. To superinduce upon any object an appearance, the tendency of which shall be to disprove the commission of the crime,—whether by disproving the existence of the criminal act or some criminative circumstance, or by proving the existence of some justificative, or extenuative, or exemptive, circumstance;—an artifice of this tendency would suppose an ulterior degree of refinement, and would come under the denomination of fabricative forgery of real evidence.

As it is only through the medium of physical facts that psychological facts can be brought to view, it is, consequently, through the medium of physical facts alone, that any deceptitious representation of psychological facts can be conveyed. Physical facts alone, and not psychological facts, are the only one of the two sorts of facts upon and in respect of which forgery can, properly speaking, be committed—to which the operations indicated by the term forgery can bear any direct and immediate application.

As to physical facts; although, among the several modifications of which real evidence of the evanescent kind is susceptible—evidence consisting of motions, sounds, colours, Edition: current; Page: [16] smells, tastes, and (if the word may be used) touches,—there is not perhaps a single article that has not, at one time or other, been taken for the subject of that sort of deceptitious operation which, applied to other subjects, has received the name of forgery; yet it is among the modifications of permanent real evidence that we are to look for that modification of forgery which is most in use, most readily apprehended, and most apt to present itself under that name.

The beautiful history of the patriarch Joseph will afford us one exemplication of forgery respecting real evidence. Preparatory to the affectionate forgiveness he meditated to extend to his brethren, his plan required that an alarm should be raised in their guilty bosoms—an apprehension of being punished, not indeed for the barbarity of which he had formerly been the victim, but for a supposed offence of recent date, of which they were altogether innocent. In this view it was, that, into one of the sacks that had been filled with the corn which they had been buying, he caused a cup to be introduced, which, not having bought it, they had never meant to take. Here then we have an example of forgery of real evidence of theft—forgery of real evidence of the permanent kind—forgery of evidence presented by the permanent situation of a certain material object, a certain real body, principal object and subject-matter of the supposed theft, the imputation of which it was intended thus to fix upon them, though for a time only, and for a generous and friendly purpose.

Another example may be afforded by the modern case of Captain Donnellan. The smell afforded by the laurel-water, the poison supposed to have been employed by him as the instrument of death,—this important phenomenon, susceptible of permanence in respect of the substance itself and its odorous power, evanescent when considered in respect of the sensations of which, on any given occasion, it might have been productive,—was, at any rate (so long as the phial continued impregnated with it,) a lot of real evidence—a lot of evidence indicative, at once, of the physical act by which the poison was applied to the organs of the patient; of the intention, the murderous intention, in pursuance of which these acts were performed; and of the criminal consciousness with which that intention was accompanied. Conscious of all these facts, as well as of the punishment annexed by law to such crimes, Donnellan, on observing how the phial had become the subject of observation, took it up, and, with the apparent view of doing away the instructive smell, poured water into it, and rinsed it out. The forgery thus actually committed was of the kind that has been distinguished by the name of obliterative. Suppose now that, instead of simply clearing the phial of the existing smell, it had been his plan, for further security, to superinduce another—the smell, for instance, of some highly-scented medicine, such as would have been suitable to the patient’s case,—fabricative forgery would thus have been added to obliterative.

In the case where guilt, guilt on the part of the forger, really exists,—the inculpative fact, of which the act in question operates as evidence, is a psychological fact—the existence of culpable consciousness—consciousness that the act, whereby the effect is intended to be produced, is of the number of those which stand proscribed by one at least of the two guardian sanctions, the political and the moral, if not by both.

The presumption thus afforded by this species of circumstantial evidence—the presumption of correspondent delinquency—is obviously a strong one; it is, however, far from being a conclusive one. Cases, supposable cases, are not wanting, in which (supposing them realized) the failure of the presumption, the erroneousness of the inference, will be obvious and indisputable; nor are instances wanting in which these several supposable cases have been exemplified in real life.

1. Forgery (exculpative) in self-defence against a false accusation; forgery having for its object the removal of appearances tending to fasten the imputation of delinquency upon an individual really innocent. The party in question being innocent,—suppose at the same time a number of natural appearances tending to induce a persuasion of his being guilty. Take away the pre-existing source of deception, the forgery in question is true evidence of guilt: add the pre-existing source of deception, the forgery by which the deception from this source is endeavoured to be done away, is, in the character of evidence of guilt, fallacious.

No system of established procedure is yet known that does not afford instances—instances in greater numbers than an eye of sensibility can contemplate without concern and apprehension—where individuals, really innocent, have sunk under a load of imputation heaped upon them by fallacious circumstantial evidence. Suppose an article of this description, pregnant with false inferences,—an article exhibiting appearances susceptible of permanence:—the dagger employed by a murderer, conveved into the pocket of an innocent man; one garment of an innocent man stained, by design or accident, with blood from the body of a man who has been murdered. Suppose the innocent man detected in his endeavours to rid himself of the dagger, to wash away the blood: the dagger, the blood, fallacious as they are, are, notwithstanding, evidence: these endeavours, innocent as they are, Edition: current; Page: [17] will accordingly be, in appearance at any rate, and in a certain sense in reality, forgery of real evidence.

The case of the unfortunate Calas affords an exemplification of more than one of the incidents by which the conclusiveness of an inculpative presumption may be proved. A son of his had received a violent death from his own hands: the father was brought to trial on a charge of murdering the son. As far as the confusion of mind into which he was plunged permitted, he had obliterated or changed some of the appearances about the body of the deceased, and other circumjacent bodies: here was forgery of real evidence. On his examination, he denied some of the facts by which the non-naturality of the death was indicated: in this mode, as in the former, he concealed—not indeed the fatal act itself, the act by which the process of strangulation was effected (for in that he had neither part nor privity,)—but some of the evidentiary facts by which it was indicated: here was clandestinity. To what end all these aberrations from the line of truth?—to cover guilt?—No; for there was none anywhere. The object was to save the reputation of his departed child, and thereby the reputation of the family, from the ignominy which, had the direct truth been known, would (he was but too well assured) be stamped upon it by a most mischievous and endemial prejudice.*

2. Forgery (inculpative) acted in sport: forgery committed in endeavouring, for a sportive purpose, to fasten upon an innocent person the imputation of delinquency in this or that shape for a time.†

In the story already referred to—the story of Joseph and his brethren—we may find an exemplification of this case; though the sport was there not of the mirthful, but of the serious and moral—not of the comic, but of the tragic kind. Suppose the patriarch,—minister as he was to an absolute king,—suppose him, notwithstanding, amenable to the ordinary dispensations of justice: suppose his fraternal and generous project observed, and mistaken for a serious hostile one:—the ultimate innocence of intention would, when demonstrated, have been sufficient to repel the presumption afforded by the apparent indications of a design deceptitious and injurious, and to add to the instances by which it is proved that, in the character of inculpative evidence, this, any more than any other species of evidence, is never entirely exempt from the danger of proving fallacious.

Penal justice is not the only theatre of a fraud of this complexion: it is equally applicable to non-penal cases. It may have for its object the subjecting a man to punishment, or to the burthen of making satisfaction, when undue: it may have for its object the exempting a man from punishment when due: it may equally have for its object the causing a man to be put into possession of some right to which he has no just claim: it may have for its object the exempting a man from some obligation, which, as necessary to the collation of a correspondent right, some other person has a just claim to see imposed upon him.

The clandestine removal of a land-mark affords an example of a case of forgery of real evidence, having for its object the acquisition of a proprietary right. Considered in respect of its most obvious and most frequent motive and efficient cause, it is a contrivance for stealing land: it is a succedaneum to the forgery of a deed, designed to serve as evidence of a title to land. Considered as the act of a person to whom the loss would not be productive of any profit, it would at any rate be a contrivance for injuring a person in his property, by destroying his title to land.

By the foregoing theoretic views, a few practical instructions are obviously suggested.

The first is, that it is an office incumbent on the legislator, and, under his authority and guidance, on the judge,—whenever any material objects present themselves as capable of affording real evidence in the cause (be it penal, be it non-penal,)—to take such measures as may be suitable to the nature of the case, for securing their continuance in that state in which they shall be still exhibitive of the evidence which they appeared to exhibit at the time of their being first observed; and to prevent them from either passing of themselves, or being purposely or accidentally brought, into any other state, in which the evidence exhibited by them might be in danger of proving fallacious.

The attention bestowed upon this object, is, in the French law, particularly conspicuous: more so than in the English. In the former, the judge has general explicit duties presented to him, and explicit rules for his guidance, with commensurate powers. In the English law, no special powers extensive enough to embrace the object are possessed Edition: current; Page: [18] by any magistrate; and in the exercise of his powers, so far as they happen to be adequate, he is left to his own unassisted discretion, without any instruction for his guidance.

Before any suspicion has arisen—before any steps have been taken, in the view of bringing the delinquent to justice—the field for this species of forgery is open to him; and no provisions taken by the legislator can be of any use, the moment for making application of them not being yet come. But as soon as suspicion has told her tale to justice, and the servants of justice have been put upon the search for evidence, then it is that things as well as persons may in this view be fit objects of their care.

2. Another subject for the consideration at least of the legislator, is, the putting (where practicable) this species of forgery, under its several applications, upon the same footing in respect of prohibition and punishment, as forgery of written evidence, when directed to the same ends.

By the compilers of the books of Romano-German law, Prussian* as well as Austrian,† removal of land-marks constitutes an independent species of delinquency, under a title by itself, not referred to frand, the crimen falsi, or any other genus. Under the same denomination, mention had been found to be made of it in the original books of ancient Roman law.‡ This, it is evident, is a case of forgery of real evidence, in which the obliterative and the fabricative species are combined. In so far as the designation that had been given of the real boundary is done away by it, it is obliterative; in so far as an indication of a false boundary is presented, by setting the mark down again in a wrong place, it is fabricative.

In this spot, and in this alone, the penal law of these two German states has covered a portion, important indeed in its nature, but comparatively minute in its extent, of the wide field of this modification of forgery.

Neither the English nor the old French law have made so much as this small advance towards the comprehension of this fraud. The French, in their adoption of the Roman law, seem somehow or other to have dropt what the more faithful Germans have copied.

In French jurisprudence, however, instances are not wanting of the application, real as well as suspected, of this species of fraud, to the most mischievous and flagitious purposes.

In the case of Le Brun,∥ who died of the torture that had been unjustly inflicted on him for his supposed participation in the murder of his mistress, the judicial officers, when possession had been taken of an old key that had been in his occupation, were charged by his advocates with having altered it into a master-key, for the purpose of his appearing to possess a facility, which in fact he did not possess, for the commission of the crime.

Under the Roman law, the word stellionatus served as a head to comprise a hodge-podge of offences, chiefly of the predatory class, bearing scarce any other resemblance to each other. Out of six, the third is si quis imposturam faciet in necem alterius—if any one shall have employed imposition in the view of depriving another of his life. Under this head, forgery of real evidence for that particular purpose may probably have been meant to be comprised.

A lizard is a cunning animal, and a stellio is the most cunning of all the lizards, as Pliny, the most accurate of natural historians, assures us. It is upon the ground of this anecdote of natural history, that the Roman lawyers have jumbled together so many other offences which require no contrivance, under the name of stellionatus. Stellionatus should, by this description of it, have been synonymous to fraud, or been used to express exclusively some modification of fraud.

CHAPTER IV.: OF PREPARATIONS, ATTEMPTS, DECLARATIONS OF INTENTION, AND THRLATS, CONSIDERED AS AFFORDING EVIDENCE OF DELINQUENCY.

§ 1.: Probative force of these circumstances considered in themselves.

I. Preparations;—viz. acts done in the intention of giving birth to the act considered as the principal fact, the fact said to be evidenced.

The event having actually taken place,—if the acts considered as preparations with regard to that event were such as properly come under that name, their probative force with reference to it is out of dispute, and they are assumed to be conclusive.

Of acts of this description, and those others that follow them under the same more extensive denomination of precedential acts, it may be of use at the outset to observe, that—although in point of time the acts themselves are essentially prior to the principal act or other fact—it will frequently happen, that the time when they are understood to be such, the time when their connexion with the principal fact is perceived, and even the time when they themselves come to light, is of later date.* That it should be so is the more natural, inasmuch as—if the design, being of a criminal or in other respects an obnoxious nature, is understood (or though it be but suspected)—a natural though not a necessary Edition: current; Page: [19] result is, that it should be frustrated: that the obnoxious event should be prevented from taking place.

It is in the penal law that acts of this description have been most frequently brought to notice: the purchasing, the collecting, the fashioning, the instruments of mischief; the repairing to the spot destined to be the scene of it.

Not that the facts which are apt to come in question in a non-penal cause are in their nature by any means destitute of this species of circumstantial evidence:—1. Preparations for the ceremony of interment have been brought forward as circumstantial evidence of expected, though more naturally of precedent, death; most commonly to prove a death which really took place: rarely, but not without example, to afford a fallacious proof of the death of a person at that time still in existence.* 2. Preparations for birth (i. e. for parturition) have been brought forward, sometimes to repel the charge or suspicion of the destruction of an illegitimate child by the mother, sometimes to afford proof of filiation, real or pretended. 3. Preparations for the marriage ceremony have been brought forward, sometimes as presumptive proof of the subsequent performance of the ceremony; sometimes as proof of an engagement to that effect, when satisfaction for the breach of it has been claimed.†

When the act projected is of a criminal nature, or where on any other account the discovery of the design threatens to be followed either by the frustration of it, or by any other inconvenience, either to the agent in question, or to any other person or persons, whose welfare is regarded by him with an eye of sympathy,—the natural state of things is, that the preparations should be endeavoured to be concealed. Understand, the preparations for bringing about the event which is particularly and for its own sake endeavoured to be brought about. But in this main and direct design, are involved by accident a various and almost indeterminate multitude of incidental and collateral ones: 1. Preparations for giving birth to productive or facilitating causes, of all kinds and degrees of propinquity or remoteness; for removing obstructions of all kinds from all quarters, and, among others, for obviating suspicion of the design itself; 2. Preparations as it were of the second order, for preventing discovery or suspicion of the preparations of the first order, viz. of those which are pointed most immediately to the accomplishment of the principal design; 3. To these preparations of the second order, imagination will easily add preparations of the third and fourth order, and so on. For it is evident, that to this chain of preparations—to the chain of eventual or intended causes, capable of being thus spun out of the stores of wayward industry—there can be no certain limit.

The measures thus taken for concealment or illusion—for involving facts in darkness, or covering them with false colours—will sometimes appear in the form of discourse, oral or written; sometimes in the shape of deportment,—physical acts at large. Whatever a man does, he does either by his own hands, by his own immediate operative powers, or by the hands of others. When he gives motion to the hands of others, it will generally be by words. So, if the hands or the lips of others be prevented from raising up obstructions to his designs: and, among the persons thus wrought upon—the persons prevented from becoming or continuing to act in the character of opponents, or converted into coadjutors—may be the intended sufferer himself.

On March 30th, 1781, at the assizes at Warwick, Captain Donnellan was convicted of murder, committed by poisoning Sir Theodosius Bonghton, in whose estates he had an interest in right of his wife. Under the present, as well as several succeeding heads, this case will be found pregnant with a variety of instructive illustrations. The determination was formed, that, in some way or other, the death of the young man should take place. To shut the door against suspicion, a notion was to be propagated, that his state of health was desperate; that death—speedy death—was certain; that his imprudence was continually heaping up causes upon causes.‡ The poison employed was distilled laurel water. The plant was to be found of course in the garden; and the murderer, not to have poison to buy, had provided himself with a still for the fabrication of it. He practised distillation frequently; and the room in which he operated was kept by him locked up.∥ The young man had a trifling complaint, for which he was taking medicine: the contents of one of the phials were to be got rid of, and the poison substituted. The phials, as they came in, used to be placed by him in an inner room, which he had been in the habit of locking up. He happened once to forget to take his medicine. “Why” (says Donnellan) “don’t you set it in your outer Edition: current; Page: [20] room? you would not then be so apt to forget it.”—The fatal advice was taken: and thus the necessary opportunity was prepared.

Preparations capable of a specific description are frequently and properly made the subject of a separate prohibition;—converted into distinct offences.

Where the connexion between any such preparatory act and its correspondent principal act is looked upon as sufficiently intimate—where the existence of the former is looked upon as sufficiently conclusive with regard to the existence of the latter—the vigilance of the legislator has not uncommonly exercised itself in laying hold of the preparatory act, and converting it, by his prohibition and punishment, into a separate offence; instead of taking the chance of the judge being able to treat it upon the footing of an evidentiary act, with reference to the corresponding principal act, and so bringing it within the punishment already attached to such principal act. Forgery, coining, but, above all, smuggling, afford so many instances of this line of legislative practice.* Under the head of Indirect Legislation, it has been brought to notice in another place.†

To an operation of this sort an objection presents itself, which, when it is not conclusive as a bar, may at any rate be useful as a caution. Such an operation, it may be said, will be either useless or mischievous: useless, if the effect of it be not to cause a man to be convicted of the offence in a case where otherwise he could not have been convicted; mischievous, in the opposite case. To the judge alone it belongs to be informed of the circumstances of each individual case; to the legislator not. If, in any given instance, to him who is thus informed of those circumstances, the evidentiary act, even with the addition of whatever other evidence the case may happen to furnish, does not appear to afford a sufficient ground for pronouncing the existence of the principal act,—the operation of the legislator—the obligation which he lays on the judge to act as if the ground were sufficient—is an act of injustice: it is productive of punishment where not due:—and, in the only remaining case, justice, at any rate, does not gain by it.

To this objection three answers may be applied.

1. In the first place: the act of the legislator—the act whereby the prohibition is issued, together with its punishment—is (as such) prior in its date to the occasion by which any act in disobedience of it can be produced. The subject has complete and effectual warning of it (for, if not, the answer, it must be confessed, does not apply:) the subject has complete warning of the prohibition put upon the newly-prohibited act, the formerly unprohibited and amply evidentiary act; and the abstaining from it is as much in his power as the abstaining from the principal act. If indeed the law—instead of being a law precedent to the offence, a law issued with the ordinary precedent notice—were a law subsequent to the offence—were, in a word, in the language of English jurisprudence, and after the fashion of every decision of jurisprudence in a new case, that monster of iniquity an ex post facto law;—then, indeed, the objection would be not only applicable, but unanswerable. But this is not supposed to be the case.

2. In the next place: the more effectually to secure innocence from the punishment levelled against guilt,—when an act that accidentally might now and then, in the character of an evidentiary act, have involved the agent in the punishment appertaining to the principal act,—when such an act is taken in hand by the legislator, and converted into a principal and independent offence, care ought to be, and commonly is, taken, to interweave in the description of the new-created offence, explanations, serving to limit it, and make sure of confining the application of the punishment to the case where the quondam evidentiary act, the supposed act of preparation, is really such—is really connected in the mind of the agent with the intention of committing the principal act.

3. In the third and last place: to the last-mentioned precaution may be, and not unfrequently is, added another,—viz. the reducing to a degree below that of the original or principal offence, the punishment annexed to the evidentiary, the new-created offence. Instances of this sort, in no inconsiderable number and variety, would probably be found in the laws of all countries relative to smuggling: they certainly are to be found in the British laws relative to that multifariously-diversified species of offence.

What has been said of preparations may apply, with little variation, to attempts; since—with reference to the ultimate object of intention, the ultimate result—all attempts, all motions previous to consummation, may be considered as preparations. By attempt, we understand action, carried beyond mere preparation, but falling short of execution of the ultimate design, in any part of it.

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Between preparations and attempts, the distinction will (it is evident) be, in many cases, very indeterminate; and in different cases it will be widely different. In penal cases, it will be different according to the nature of the species of offence: in offences of the same species, it will be different again, according to the different circumstances in which, the different means by which, the individual offence in question is endeavoured to be committed. In case of homicide, for example,—according as the intended scene is laid on shipboard or by land; on the public way or in a private chamber; by drowning, fire-arms, or poison.

Fortunately, on the present occasion, these distinctions are as useless, as, on any occasion, they would be nice and intricate. So the ultimate design be evidenced, whether the act by which it is evidenced come under the denomination of an attempt, or only of an act of preparation, makes in this respect no difference.

II. Second example of circumstantial evidence decidedly precedent to the fact evidenced, Declarations of Intention:—of the intention to perform the act, the performance of which constitutes the principal fact, the fact evidenced, as above.

This species of circumstantial evidence bears a close analogy to the foregoing. Declarations of intention are expressions of intention purposely conveyed by words: by preparations, purposely or not, the intention is expressed by acts. The former belong to the head of personal evidence by discourse; the latter to that of personal evidence by deportment.

III. Threatening, or Menacement. A threat, an act of menacement, is a name given to a declaration of intention, in the case where the act declared to be intended is of the number of those of which it is supposed that the effects would be of a painful nature, with reference to the person to whom the declaration is addressed.

The reason for giving to a declaration of intention in this case a separate mention under a separate name, is, that it necessarily assumes a separate name in every system of penal law; inasmuch as, where the act declared to be intended is considered and treated as an offence, so is (or at any rate, in cases of a certain degree of importance, so ought to be) the declaration likewise.

A declaration to this effect may be expressed by any other signs as well as by words. Preparations, when open, may have for a collateral object this collateral result.

It matters not whether the threat be addressed immediately to the person on whose mind the unpleasant impression is intended (or declared to be intended) to be made,—or to any other person or persons, to the intent that, in one way or other, at some time or other, it may reach his notice. In a word, if it be in the shape of a discourse, oral or written, that the threat is meant to be conveyed, it matters not whether he be mentioned in the second person or the third.

For the reason given above, menacement is presumptive evidence of the act; i. e. that it was by or with the co-operation of the threatener that the act was done: but, for the reason also given above, the evidence is not of itself absolutely conclusive.

§ 2.: —Infirmative circumstances applicable.

These circumstances have been already considered in the character of criminative circumstances, evidentiary of the part supposed to have been taken by the supposed delinquent in the production of the noxious result.

Remain to be brought to view the several possible facts by which, in the character of infirmative facts, their probative force, in regard to the part supposed to have been taken by him, is capable of being diminished.

1. Intention different ab initio;† in which case, the result intended to be produced may have been either—1. altogether innoxious;‡ 2. less noxious than the result that actually took place; or, 3. equally or more noxious.∥

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2. Intention overshot by the result. But in this case the disprobabilizing, the infirmative force of the infirmative fact, applies, not to the whole of the result, but only to the excess of the result produced over the result intended.*

3. The intention changed; viz. at a time posterior to the attempt or course of preparation, which, being proved, is exhibited in the character of a probabilizing circumstance, evidentiary (as against the supposed delinqent) of a participation in the production of the mischief. Here, as above, it is only on the supposition of the fresh design’s being less mischievous than the original one, that the possibility of the infirmative fact in question can have (or at least ought to have) any influence in practice.

4. Intention persisting, power failing: the result, though intended to be produced by the supposed delinquent, having in fact been produced, not by any act of his, but by other means.†

5. Among co-delinquents, the operation of the immediate criminal agent varying from the common design agreed on. This, a case frequently exemplified, includes the three first cases, being distinguished by no other circumstance than that of the number of the offenders.

Two or three engage in a plan of robbery: one of them, in prosecution of the design, commits a murder—on his part intentional, but not necessary to the design. Whether, in the intention of committing the greater crime, the accomplices in the lesser did or did not take part, is among the questions which (in a case of homicide on the occasion of a design of robbery) have been passed over as not worth notice by the unfeeling negligence of English judges.‡

In an early and rude state of society, the attention of those on whose will the fate of their fellow-creatures depends, has everywhere been almost exclusively pointed to physical facts, regardless of psychological ones. In the instance of the Chinese lawyers, Englishmen being the eventual or intended victims of it, this barbarity has attracted notice. But it, on this score, the first stone be due to the head of the Chinese lawyer, the second is, on a multitude of similar accounts, due to those of his learned brothers on the English bench.

II. Declarations or other expressions of intention: infirmative facts applicable.

To the criminative force of discourse expressive of an intention to commit an offence of the nature of that eventually committed, the supposable facts that apply in the character of infirmative considerations, are, in species and denomination, the same that have been seen applying in the case of preparations and attempts. But, forasmuch as words are apt to be uttered with less consideration than a course of preparation attended with labour and hazard is wont to be engaged and persevered in,—the probative force of the criminative circumstance seems in general less considerable, and at the same time the disprobative Edition: current; Page: [23] force of the infirmative consideration more considerable.

Being of the nature of confessorial evidence, viz. of that species of it which is extra-judicial and spontaneous, differing only in respect of relative time (the confessorial evidence being subsequent to the event, the evidence here in question antecedent,) it stands exposed to the disprobative force of the same infirmative considerations as confessorial evidence, which see.*

1. If the state of things expressed in the former instance by the words intention different ab initio be exemplified here, this is as much as to say, that the declarations that have place here (viz. the declarations of an intention to commit the crime that in fact was afterwards committed) were false. Supposing such to be the case; the inferences that may be drawn from them, and the infirmative considerations that apply to their probative force in the character of criminative circumstances, are the same as in the case of false extra-judicial and spontaneous confessorial evidence, or false responsion, which see.†

The supposition that these declarations are false, may, at first view, be apt to appear inconsistent with the supposition all along made; viz. that the crime in question has actually been committed, and that by whom committed (or rather, whether committed by the supposed delinquent) is the only remaining subject of inquiry. But, whether the crime actually committed, by the supposition, had or had not the supposed delinquent for a sharer in it,—the declarations made of an intention to commit a crime of that or a similar description may, at the time when made, have been false: and declarations of an intention to commit a crime are no less susceptible of being false, than declarations of the opposite cast, viz. declarations of an intention to abstain from the commission of that or a similar crime.

See Chapter VI., in which the various inducements by which a man may have been engaged to avow the commission of a crime, committed or not committed, are brought to view.

III. Threats:—infirmative considerations applicable.

To threaten to do a criminal act is to express an intention of committing it. The only difference is, that, when a man threatens to commit a crime, he not only expresses an intention of committing it, but declares this intention in the design that such his declaration should come to the knowledge, and be productive of fear in the mind, of some person in whose mind (if committed) he expects it would be productive of grief.

Of course, whatsoever infirmative considerations apply to declarations of intention taken at large (viz. declarations of an intention to commit the crime afterwards committed,) apply to threats; viz. to threats bearing relation to the same crime. But in the case of threats, these infirmative considerations seem in some instances to apply with superior disprobative force.

In the case of threats, very commonly the result really intended to be produced is,—not the mischief of the crime, nor, therefore, the crime itself,—but only the apprehension of it—the alarm, the terror naturally attendant on the expectation of it—on the contemplation of it in the character of a mischief likely to take place. If so, it is in this way that the state of things expressed by the words intention different ab initio is here verified.

The consideration that contributes to render the falsehood of the declaration in question in this case probable, and consequently to weaken the probative force of this circumstance in the character of a circumstantial evidence of the imputed delinquency, as against the supposed delinquent, is, the tendency of such a prediction to obstruct and frustrate its own accomplishment. By threatening a man, you put him upon his guard; and force him to have recourse to such means of protection, as the force of the law, or any extra-judicial powers which he may have at command, may be capable of affording to him.

Whatever may be the disprobative force with which, in the character of an infirmative fact, this tendency on the part of an antecedent threat may operate in opposition to its probative (viz. to its criminative) force,—the indication afforded by this infirmative consideration can never be peremptory and conclusive. By the testimony of experience, criminal threats are but too often, sooner or later, realized. To the intention of producing the terror, and nothing but the terror, succeeds, under favour of some special opportunity, or under the spur of some fresh provocation, the intention of producing the mischief; and (in pursuance of that intention) the mischievous act.

Note, that among the tendencies of menacement is that of operating at the same time as an evidence of an ulterior and distinguishable evidentiary fact; viz. operation of corresponding motives, existence of corresponding dispositions: permanent sources of the delinquency in question, in the instance of the supposed delinquent. As to this point, see further in an ensuing chapter.‡

A question which may occasionally arise is, how far mendacity on the part of a witness may be considered as probabilized by evidence proving him to have previously threatened to prejudice by his testimony a party on a side opposite to that on which he is called: in particular, in a criminal case, to have threatened Edition: current; Page: [24] to give such testimony as should render certain, or more or less probable, the conviction of the defendant.

In this supposed circumstantial evidence of mendacity may be seen a very frequent source of delusion, and a very useful instrument in the hands of delinquents and their advocates.

If the threat be conditional, next to nothing is proved by it: if absolute, still less. “If you do not so and so as I would wish, I will testify against you.” With superior and refined morality, it certainly is not consistent for a man thus to render dependent on a compliance with his personal wishes a service which he owes to justice. But does it follow that, because—out of court, and before you have been called upon for your testimony by the official ministers of justice—you reserve to yourself (or rather declare yourself to have reserved to yourself) the faculty of making or not making, as you think fit, the preliminary disclosure which may eventually lead to prosecution,—that therefore, if by the power of justice called upon for your testimony, you will perjure yourself?

A threat, however, of this kind—though, taken by itself, it operates with very little force in the way of presumptive evidence of mendacity—may be of considerable efficacy in corroboration of other circumstantial evidence to the same effect.

CHAPTER V.: OF NON-RESPONSION, AND FALSE, OR EVASIVE RESPONSION, CONSIDERED AS AFFORDING EVIDENCE OF DELINQUENCY.

I. First article of that class of circumstantial evidence, the nature of which is to present itself at a period of time subsequent to that of the principal fact,—non-responsion judicial: silence on the part of an individual (being a party to the cause) at the time of his being subjected to examination in due form of law: wilful forbearance to make answer, in the character of a deposing witness, to any relevant question put to him in the course of a judicial examination. In this case is involved the supposition of the establishment of the practice in question, in the instance of both parties, plaintiff and defendant, in both sorts of causes, penal and non-penal: and, in the supposition of the establishment of that practice, is again involved the supposition of the propriety of it—of the propriety of it, in the utmost latitude of which it is susceptible, as above. Is it then proper, and to an extent thus unlimited? Yes: and that for two sorts of reason. In the first place, because the notions by which, in one of the four cases (viz. that of the defendant in a cause of a penal nature,) it stands condemned, are mere prejudices—groundless and utterly indefensible prejudices—conceits, founded not on the principle of utility, but solely on the principle of caprice. In the next place, because, in this case, as in the three others, the practice in question is the most powerful as well as the safest of all instruments that can be employed for the discovery of truth. The reasons in favour of the former of these positions will be exhibited under other heads:* the reasons which the latter has for its ground will now appear as we advance.

The fact of which this sort of behaviour operates as evidence—the conclusion to which it tends, the inference which it appears to warrant—varies in its description, as already intimated, according to the quality of the cause, penal or non-penal, and the relation which the party, plaintiff or defendant, bears to it.

Case 1.—Let the cause be a penal one, and the person examined in the character of a witness, the defendant. In this case the conclusion will naturally be, that he is guilty of the offence of which he stands charged. Thus stands the proposition: the proof will be exhibited further on.

Case 2.—Let the cause be a non-penal one, and the party examined be the defendant, as before. The conclusion is of the same kind, varying only with the nature of the cause. The predicament he stands in is of the number of those in which a man stands bound by law to take upon him the obligation sought to be imposed upon him by the plaintiff’s claim.

Case 3.—Let the cause be a penal one, as before, but the party the plaintiff. In this case, if it be a cause purely penal,—the demand made by the plaintiff being purely the infliction of punishment, and that a punishment not including any effect of a nature to afford personal satisfaction to himself; as is the case where the plaintiff prosecutes for the public merely, in which case he is a public officer, acting without personal interest; in this case it cannot fall to the share of the plaintiff to be examined. If by accident (and it could happen only by accident) it did fall to his lot to be examined, wilful forbearance to answer is a result that can scarcely be supposed, it being difficult to suppose a motive that should engage him to it: and supposing it to take place, no conclusion can in the nature of the case be drawn from it. If the cause be of the mixed kind, in which a non-penal demand is combined with the penal one—a demand of satisfaction for the benefit of the individual, with the demand for punishment to be inflicted for the benefit of the public,—in this case, so far as concerns the non-penal part of the demand, the case coincides Edition: current; Page: [25] with the case next following. The conclusion turns to the prejudice of the plaintiff, in the same way as we saw it turn to the prejudice of the defendant in the preceding non-penal case.

Case 4.—Cause, non-penal; party, the plaintiff, as before. Conclusion, the plaintiff’s claim ill-founded: the defendant not in fact in that situation which it is necessary he should be in, to give legality to the demand made upon him by the plaintiff—the demand that he shall be compelled to submit to the obligation sought to be imposed upon him at the instance of the plaintiff, the obligation correlative to the plaintiff’s pretended right.

Now then as to the proof—the grounds, of the conclusion, that the party refusing to make answer to questions put to him by authority of justice, was in the wrong, in respect of the point in controversy in the cause. And, first, where the party in question is the defendant, and the cause a penal one.

1. Supposing him not guilty, such silence cannot but be detrimental to him: supposing him guilty, it cannot but be advantageous to him; that is to say, supposing the judge were to abstain from drawing the inference which no individual viewing the matter in the same point of view ever fails to draw, on the ground of the known principles of human nature and common sense.

To answer one way or other, cannot but be in his power. No question whatever to which a man, any man whatsoever, is not able to make an intelligible answer of some sort. Quest. What do you know about this business? Ans. So and so: or, I know nothing about the matter. Whatever be the question, whosoever be the individual to whom it is propounded, an answer to one effect or the other may in every case be given by him. The answer may be true or false: if false, the case belongs to the head next considered.

The party is exposed to suspicion—to a strong and serious suspicion, of having been really guilty of the offence of which he stands accused. Followed or not followed by punishment,—the persuasion entertained respecting the truth of the accusation—entertained by every man to whose cognizance the particulars of the examination present themselves, will be the same. The part that will be in general acted on such occasion by a man who feels himself guilty, being made known to all mankind by reason grounded on experience,—so sure as that part is acted by any man, so sure will he be looked upon as guilty by all who know of it: and, being so looked upon, the disrepute attendant upon the offence—the punishment attached to it by the popular, or say the moral sanction—the forfeiture of a correspondent portion of esteem, and consequent good-will, attaches upon him of course.

Supposing him not guilty, every fact and circumstance that he knows, will contribute (if known) to manifest his innocence: for, that he has not done the act charged upon him, is certain by the supposition. Between facts that are all true, there cannot be any incompatibility, any inconsistency: if, therefore, there be a single true fact with which the fact charged upon him is inconsistent, that fact cannot but be false. Speaking, therefore, from memory, and not from invention,—by every fact he discloses he gives himself an additional chance of manifesting the falsity of the imputation cast upon him. Forbearing to put in for this advantage, he makes manifest by as plain a token as it is possible for a man to display—as plain as he could by any the most direct confession that were to confine itself to general terms,—that the situation he is in, is of that sort that does not suffer a man to put in for that advantage: the situation of him whose memory holds up to him the picture of his own guilt.

Such are the grounds of the inference, spread out at full length. But where is the individual, male or female, high or low, rich or poor, who, being of ripe years and of a sound mind, is not in the habit of drawing the same inference with equal correctness and security, though by a shorter process, and without the trouble of clothing it in words? Where is the master or mistress of a family, who seeing reason to suspect a child or servant of any forbidden act, does not, for the confirmation or removal of such suspicion, employ this species of evidence, and with more confidence than any other?—Silence is tantamount to confession, is accordingly an observation, which, whether it may happen or not to have been yet received in any collection of proverbs, is repeated and acted upon with not less confidence and certainty, with not less safety, than the most familiar of the sayings which have been thus distinguished.

Could the existence of a set of human beings have been conceived, endowed with any particle of the attribute of rationality, in whom a conceit of any kind should to such a degree have extinguished the lights of reason and common sense, as to have disposed them to shut the door of justice against this surest, safest, and most satisfactory species of evidence? Yes: two have already been indicated:—English lawyers,—and a people whose boast it is, with eyes hermetically closed, to be led by a hook put into their noses by the interested hands of English lawyers.

In the character, or at any rate the guise, of an objection or exception, one consideration has here a claim to notice. A case (it may be said) there is, in which, in the instance of a defendant under examination, the inference Edition: current; Page: [26] from muteness to delinquency will not be just;—understand, the individual act of delinquency of which he stands suspected: for it is relatively to that, and that alone, that decision pronouncing delinquency can be pertinent and just. His conduct will be just the same, if, instead of the motives furnished (as above) by appropriate delinquency, there be any others to which it can happen to bind him to silence with equal force. And, without having been guilty in respect of the individual act of delinquency imputed to him, may it not happen to a man to be bound to silence by the pressure of other equally coercive, or even more than equally coercive, motives?

Yes, certainly it may: but of what nature can be these hypothetical and just possible motives? Motives derived from delinquency; motives not derived from delinquency. Under one or other of these divisions they cannot but be comprised.

Say, in the first place, motives derived from delinquency. The delinquency from which they are derived will then be of an order inferior, equal, or superior (understand, as indicated and measured by the degree of punishment,) with reference to the act of delinquency upon the carpet. To motives derived from delinquency of an inferior order, it cannot happen to have produced this supposed equal pressure: sooner than expose himself to the superior punishment, as he would by silence, a man will make answer, though such answer be confession, and though the effect of such confession be to expose him to punishment,—such punishment being, by the supposition, inferior to that to which he would expose himself by silence.

Put the case of equal delinquency and punishment, the silence will be quite natural: put the case of superior delinquency and punishment, it will be still more so. But what follows to the prejudice of the conclusion, at least in respect of the utility of the practical conduct proposed to be grounded on it?—Absolutely nothing.

1. In the first place, a coincidence of this sort, though possible, is much too rare and too improbable to constitute a valid objection to the practical conduct to which the inference leads. If valid as an objection to conviction and execution in this case, it would be an objection at least equally valid to conviction and execution in every case: it would be an objection more than equally valid to every other species of circumstantial evidence; in a word, to every other species of evidence. False testimony—even false criminative testimony—at least, false testimony amounting to mere incorrectness, and not accompanied with criminal consciousness,—is more common than the sort of coincidence here supposed. False testimony in cases non-penal is abundantly more so: in penal causes, false testimony on the exculpative side still more so. Cases of this rare sort have now and then appeared; but as often as they have appeared, they have been cited, not for their probability, but for their extraordinariness.

A story I have often heard or read of (no matter which) may serve for illustration. An entertainment was given by some great personage to a numerous and mixed company: in the course of it a trinket was displayed, the value of which had, by I know not what operation of the principle of association, been raised in his imagination and affections above all ordinary estimation. On a sudden, an alarm was given that the precious article was missing. “Let every man of us be searched,” said one of the company. “Yes; let every man of us be searched,” said all the rest. One man alone refused: the eyes of all were instantly upon him: his dress betrayed symptoms of penury: no doubt remained about the thief. He entreated and obtained of the master of the house a moment’s audience in a private room. His pockets were turned inside out, when in one of them was found—not the lost thinket, but something eatable. He had a wife who for such or such a time had gone without food.

The story may be true or not true: but supposing it ever so true, would it afford any valid objection against the universally-prevailing law which authorizes the making search about the persons, abodes, and other receptacles, in the occupation of suspected persons, for stolen goods? It would afford a better argument in such case against such search, than the possibility of the coincidence in question can afford against the examination of a defendant.

2. Another consideration is, that—supposing the coincidence realized, the inference drawn (and that by the supposition an erroneous one,) and the decision followed by the practical measures which are the proper consequences,—still there is no harm done.* A man suffers for an offence indeed of which he is not suspected or accused, but not for an offence of which he is not guilty. The consequence is good in all its shapes:—prevention by example—prevention by incapacitation—reformation—compensation, if the case calls for it, and furnishes matter for it:—the good, in all its shapes, that is looked for in penal justice; none of the alarm that reverberates from injustice.

Remains the case of the absence of all delinquency. Edition: current; Page: [27] But if the former case is so rare, how much rarer is this latter case! To a suffering, equal or superior to that which is fastened upon a man by the given delinquency with the punishment annexed to it, he would expose himself, were he to make his conduct known:—expose himself, without being justly chargeable with any act of delinquency—without having done any of those acts in virtue of which the punishment would be just. This, indeed, is possible, but still more improbable.

Innocent himself, a man chooses to be treated as if he were guilty, rather than to expose the secrets of a mistress or a friend:* an act of martyrdom perfectly heroical, and the more heroical, the fitter a subject for a play or a romance. But the more heroical, the more rare; and therefore the less fit a subject to constitute a ground for the steps of the legislator.

The secret protected at this price, the secret of the mistress or the friend,—was there any spice of delinquency mixed with it? The muteness, heroical or otherwise, is at any rate criminal: it is the common case of an unwilling witness, unwilling to expose a friend to the punishment which his delinquency has incurred: that sort of contumacy which, wheresoever it exists, it is incumbent on the law to get the better of at any price.

Without any the least guilt on any part—on the part of the examinant himself, on the part of his mistress or his friend,—of a true and full account of his own proceeding, out of his own mouth, will the effect be to subject them or him to punishment? Of a conduct which, not being tainted with delinquency, exposes a man to suffer as for delinquency, are any examples to be found? Not impossibly: but, once more, the case is too extraordinary to afford any tolerable ground for the rejection of so instructive a species of evidence—a species by far less exceptionable, less liable to give birth to undue decision, than any other that can be named.

Appearances are against him (to borrow a phrase from the title to a play:) appearances are against him; and, by the disclosure of these appearances, he subjects himself to punishment for an offence of which he was innocent. Appearances are against him? Yes, some of the appearances: but are there none that are for him? The same examination which calls upon him to disclose the one, calls upon him to disclose the other: of those which are against him he is called upon to give an explanation: the explanation, if favourable to himself, will, by the supposition, be conformable to truth: being conformable to truth, is the conclusion to be that it will be disbelieved? That by possibility it may be so, is not to be denied; but, once more, probabilities, and not improbabilities, constitute the true ground for legislative practice.

II. Non-responsion extra-judicial: in a penal case, the act (the negative act) of him who, understanding himself to be suspected of an offence, and being interrogated concerning it, forbears to make answer to such judicial questions as are put to him in relation to it.

The tendency of this case is evidently to afford an inference of the same nature as is afforded in the case just mentioned. In degree, however, the inference will most commonly be weaker, and is capable of existing in all degrees down to 0. The strength of it depends principally upon two circumstances: the strength of the appearances (understand, the strength they may naturally be supposed to possess, in the point of view in which they present themselves to the party interrogated)—the strength of the appearances, and the quality of the interrogator. Suppose him a person of ripe years, armed by the law with the authority of justice, authorized (as in offences of a certain magnitude persons in general commonly are, under every system of law) to take immediate measures for rendering the supposed delinquent forthcoming for the purposes of justice.†—authorized to take such measures, and to appearance having it in contemplation so to do;—in such case, silence instead of answer to a question put to the party by such a person, may afford an inference little (if at all) weaker than that which would be afforded by the like deportment in case of judicial interrogation before a magistrate. Suppose (on the other hand) a question put in relation to the subject, at a time distant from that in which the cause of suspicion has first manifested itself,—put at a time when no fresh incident leads to it,—put, therefore, without reflection, or in sport, by a child, from whom no such interposition can be apprehended, and to whose opinion no attention can be looked upon as due: in a case like this, the strength of the inference may vanish altogether.

In the three remaining cases (that of the plaintiff in a penal cause, that of the plaintiff and that of the defendant in a non-penal cause)—from what has been said it will be easy to deduce the nature and strength of the inference afforded by this same modification of circumstantial evidence. In all these cases, the evidentiary fact being non-responsion, Edition: current; Page: [28] the fact evidenced will be want of right,—unfoundedness of the pretensions advanced by them in their respective situations. In all these cases, the relation—the connexion—between fact and fact, on which the presumption grounds itself, is the same: the cases in which the presumption is liable to fail, are also much the same: but the injury liable to result to the individual from a decision to his prejudice, in the case where such decision, in respect of its being grounded on such presumption, is undue, being by possibility not so great,—the inference will be drawn with so much the greater freedom in any of these three latter cases then in the case first mentioned.

III. False responsion. The inference is of the same nature; and in point of strength, whenever in this respect there is any difference between this case and that of non-responsion, it is in this case that the inference (the probability of guilt will be the strongest.

In the case of judicial interrogation, the particular inference applying to the particular case will be strengthened by the general unfavourable inference, the shade thrown upon a man’s character by the additional circumstance of falsehood: supposing it always to have acquired the tinge of mendacity by the infusion of criminal consciousness.

In the case of non-judicial interrogation, whatever counter-inference may be deduced from the topic of incompetency on the part of the interrogator, will, by the additament here in question, generally speaking, be repelled.—A question, an idle question, put to me by a child? A question from such a quarter,—could I have conceived that it would be thought to have any claim to notice? In justification of simple silence, the defence might be pertinent, and even convincing: to false responsion, the application of it could scarce extend. Of the claim it had to notice, you yourself have borne sufficient testimony: so far from grudging the trouble of a true answer, you bestowed upon it the greater trouble of a lie.

False answers are, naturally enough, interspersed more or less with self-contradictory ones. The case is no otherwise varied by the intermixture than by this, viz. that in the case of self-contradiction the falsehood is more palpable and incontestable. Of any two contradictory propositions, the one or the other will of necessity be false. Take away this internal and irrefragable proof, the detection of the falsehood must rest upon the basis—the more or less precarious basis, of other evidence.

IV. Evasive responsion, is responsion in words and appearances, non-responsion in effect: it may be termed virtual non-responsion. Under this head may be comprised all answers, in so far as they are irrelevant to the interrogatories: all answers in which nothing is contained that has in any respect the effect of a compliance with the requisition (or say command) which every interrogatory, as such, involves in its very nature.*

Responsion is either relevant or irrelevant. If irrelevant, and after admonition persisted in, it is evasive: if evasive, it is tantamount to silence; or rather, in the case of evasion (if there be any difference) the inference is stronger. Silence may be ascribed to stupidity: evasion is the work of art—the natural resource of self-condemning consciousness.

But evasion,—to what circumstance, when successful, does it owe its capacity of having the effect of silence; that is, the desired effect without the undesired? To indistinctness: everything is referable to this cause.

In some instances it will now and then happen that indistinctness, designed or undesigned, shall have the effect of false statement, affirmative or negative. In that case, upon a first view, and for the advantage of his design, he is taken to have said something;—while, upon a second view, and to the disadvantage of his design, he is not found to have said anything: as against punishment or other burdensome infliction, he is secure; when, perhaps, by means of some false and fallacious conceptions conveyed by these same words to the mind of the judge, he has produced the same desired effect that would not have been produced if any assertion had been hazarded by him in express words.

But the most common deceptitious effect and use of indistinct language (understand, to the deceitful deponent,) is to operate as a succedaneum to silence: to prevent the judge, or whoever on this occasion stands in the situation of the judge, from observing, among the several points to which a man could not have spoken truly without speaking in the way of confession, what there may be, to which he has forborne to speak.

Evasion is a sort of middle course between non-responsion, false exculpative responsion, and confessorial responsion. Compelled to say something, on pain of the consequence which cannot fail to attach upon his virtual refusal to say anything, a man keeps saying what amounts to nothing; partly in the hope that the imposition may pass undetected, and the insignificant discourse be accepted as if it were significant; partly to give himself time to consider into which of the two other paths—confessorial truth or exculpative falsehood—he shall betake himself.

The effect of indistinct language, in the character of an advantageous substitute to false statement or silence, depends greatly upon the magnitude of the mass—the voluminousnessEdition: current; Page: [29] of it, in the case of written language. Take a single short proposition,—be the language of it ever so indistinct, it will commonly be seen to be so: the insignificance of it, and (in case of mala fides) the evasiveness, will be seen through. But, in psychological as in physical objects, as the mass increases, the transparency diminishes: and since, along with the indistinctness of the object, the exertion of the mind in its endeavour to see through it increases, it will not unfrequently happen that the sinister purpose of the manufacturer of the chaos shall be effected, by the mere lassitude of the eye which has the misfortune to stand engaged to look into it.

Order—method—is among the instruments which intellectual vigour has to construct for the assistance of intellectual weakness, and which, when made, intellectual weakness assists itself by, in its endeavours to surmount the difficulties it has to contend with. But as, on one hand, the labour and difficulty of producing order, so, on the other hand, the demand for it, increases with the magnitude of the mass—with the multitude of the elementary particles which compose it. Order—meaning good order—order the best adapted to the purpose—consists in the selecting, out of the whole number of changes capable of being rung upon the number of elementary parts in question, that one of the whole number that will place the aggregate mass in the most intelligible point of view. The number of changes capable of being rung upon an assemblage of elementary parts, increases with the number of those parts:—increases with that rapidity of increase which is so familiarly and precisely known to mathematicians, and which is matter of so much astonishment to persons altogether unconversant with the first rudiments of that science. But, with the number of changes capable of being rung upon the elementary parts of the mass in question, increases the chance in favour of disorder and confusion,—the difficulty of producing order,—the difficulty of detecting the want of it,—the difficulty of pointing out the remedy for the want of it, for the purpose of insisting on the application of the remedy,—the facility of producing that sort and degree of disorder which shall weary out the energies of the inspecting eye, and force it to withdraw from the subject altogether, to save itself from the labour (perhaps the fruitless labour) of persevering in the endeavour to discover what has and what has not been said and done.

It is in written language alone that the art of evasion finds a favourable field for its operations. Let the deposition be delivered vivâ voce, any attempt of this sort is soon rendered abortive. Though accepted in such abundant instances in the ready-written form, in masses of any magnitude,—testimony is never accepted in the spontaneous mode, in the form of vivâ voce testimony, in a mass of any considerable magnitude. Delivered in the vivâ voce form, and thence in the presence of the judge; if indistinct, and by law not capable of being subjected to interrogation (for to this pitch of opposition to common sense has legal usage soared,)—no better purpose—none more favourable to the design of the malâ fide deponent—will be answered by it, than would have been answered by silence. But, if subject to interrogation, by interrogation it would immediately be clarified, and reduced either to false statement or to verbal silence. Delivered in the shape of written language, a mass of indistinct matter runs on to any number of pages or volumes: delivered vivâ voce, in the presence of a person having power to interpose at any time by interrogation, it is stopped at the first indistinct word.

CHAPTER VI.: OF SPONTANEOUS* SELF-INCULPATIVE TESTIMONY, CONSIDERED AS AFFORDING EVIDENCE OF DELINQUENCY.

When the supposed delinquent is really guilty—the offence the subject of discourse between himself and another person—and he himself the speaker,—in the natural course of things, the composition of the discourse will be a mixture of falsehood and truth: fear of detection, and the view of the criminative force with which (in so far as followed by detection) falsehood never fails to act, being sufficient to prevent it from being willingly recurred to in any other case than where, to repel suspicion, it seems altogether indispensable. But, though in the discourse itself these elements will generally be found in a state of combination, yet, for the purpose of explanation, it will be neither useless nor impracticable, to separate them in idea, and examine them apart.

Moreover, on the occasion of any such discourse,—howsoever it should have happened that the discourse was begun by the supposed delinquent, whose conduct, by the supposition, is the subject of it,—yet it will seldom happen but that, in the view taken of it by the hearer or hearers (say, for simplicity’s Edition: current; Page: [30] sake, the hearer,) it will in this or that part appear obscure, ambiguous, or (if not incorrect) at any rate more or less imperfect; in every one of which cases,—if, on the part of the hearer, discourse as well as thought is free,—interrogation on that part, responsion on the other, will, in some shape or other, take place of course.

In the ordinary colloquial intercourse between man and man, it is, however, not less natural for the discourse to take its commencement without interrogation than by interrogation: having been thus begun, it may happen to it to continue upon that same footing for any length of time: and, so long as upon that same footing it does continue, it will be conducive to distinctness of conception to consider in what shape the sort of evidence in question—self-disserving and self-criminative verbal evidence—is capable of presenting itself by itself, and without any admixture of that sort of evidence in the extraction of which interrogation has been the instrument employed.

When, on the part of a supposed delinquent, discourse of the self-regarding kind, and (with relation to the offence in question) of a self-disserving, and thence (it being a case of supposed delinquency) of a self-criminative or self-inculpative tendency, is considered as sufficient of itself to justify a judgment of conviction, declaring him convicted of that offence,—such discourse is, when taken in the aggregate, styled in judicial practice a confession.

In regard to the two modifications of evidence distinguished from each other by the denominations of direct and circumstantial, it has already been remarked how intimate the connexion is—how faint, and oftentimes scarce determinative, the boundary line which separates them.

A confession, if so it really be that it is particular enough to form a sufficient ground for conviction, cannot fail to contain more or less of that sort of evidence which, requiring no ulterior inference to be drawn from it, may with propriety be considered as being of the nature of direct evidence. But, moreover, what can scarcely happen is, that it should not contain any admixture of circumstantial evidence; viz. of propositions, each of which (coming as they do from the supposed delinquent,) supposing it to have stood by itself, might have operated with more or less probative force towards conviction, by means of some inference for which it would afford a ground,—by means of some such inference, and not otherwise.

When it amounts to a confession, the mass of discourse in question is full and satisfactory, as above. But even when, so far as it goes, the tendency of it is disserving, and, in respect of the occasion, self-criminative; yet, when delivered in loose and casual fragments, it may happen to it to possess this tendency in any the slightest degree imaginable; operating with any degree of probative force, from the highest to the lowest.

In the case where the whole mass, being complete, would have amounted to a confession; if any fragment is broken off, the remaining force may be styled a mass or article of confessorial evidence.*

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This, it will be seen presently, is far from being the only species of imperfect self-disserving, and thereby self-criminative or self-inculpative, evidence, exemplified in practice. It is, however, one species of self-disserving evidence: and forasmuch as a mass of simply confessorial evidence (i. e. a mass of confessorial evidence not amounting to a confession) does not of itself form a sufficient ground for conviction, while a mass of confessorial evidence amounting to a confession does of itself form a sufficient ground for conviction,—it would be of no small utility in practice, if a criterion was established, whereby, without danger of dispute or misconception, it might upon every occasion be pronounced of a mass of self-disserving and self-inculpative evidence, whether it was a complete confession, or nothing more than a mass more or less considerable of confessorial evidence.

Let this criterion be constituted by the application of the process of interrogation: interrogation, oral or epistolary (as shall be determined,) but at any rate judicially performed: insomuch that,—be the mass of confessorial evidence, upon the face of it, ever so correct as well as complete,—yet, until and unless, for the assurance of its correctness as well as completeness, it has had that security which it is not in the power of anything but the process of interrogation to afford, let it not be considered as amounting in any case to a confession, for any such practical purpose as that of conviction, as above mentioned.

Short of a confession—although (so far as it goes) confessorial—it may of course be, after and notwithstanding interrogation; but without interrogation let it never be considered as amounting to a confession, in what degree soever, upon the face of it, ample and instructive.

Another condition which it might, perhaps, be proper to add to the description of a confession, is this: viz. that, to amount to a confession, although extracted by judicial interrogation, it ought to be such as would have been sufficient to warrant a conviction had it been delivered by an extraneous witness.

Self-regarding evidence, as has been observed in a former chapter, is the only species of direct testimonial evidence which, with reference to a complex act of the description in question (a criminal act,) can be complete, without comprehending any article whatever of circumstantial evidence—without leaving any fact to be made out by inference. When it is thus complete—mention being made in it of every fact (psychological as well as physical) which is necessary to complete the description Edition: current; Page: [32] of the offence (this deponent, the person whose testimony it is, being the defendant, the person who stands accused or suspected of that offence;) such body of evidence may be termed plenary confession. If there be any one such fact, of which express mention is not contained in the mass of evidence so denominated, the confession, whether satisfactory or not, is, at any rate, short of plenary. In practice it may very well happen that in this or that instance it may, without being strictly speaking plenary, be considered as being equivalent to plenary, and as satisfactory as if it were so. As, for instance, if Reus, being accused of the murder of Occisus, on being interrogated, says, “Yes; it was indeed I who struck the fatal blow.” In this example, nothing more is necessarily deposed to than the physical act: but, from the confession thus made of the physical act, the existence of the correspondent intention (a psychological fact) will naturally enough be inferred of course.*

There is no imaginable lot of testimonial evidence which may not (as hath already been observed) operate in the character of direct as well as in that of circumstantial evidence. As this is the case with extraneous, so is it, and more particularly, with self-regarding evidence. Direct with reference to one fact (the fact asserted by it,) it may be circumstantial with regard to another fact, a fact inferred from the assertion. But its being capable of operating in the character of direct evidence, does not lessen the force of the demand which calls upon us to consider it in the character of circumstantial evidence. There is, therefore, no possible modification of confessorial evidence, that will not require to be considered here under the head of circumstantial evidence. In truth, it is only in its character of confessorial evidence—in respect of its capacity of affording inferences, meant or not meant by the party to be drawn from it—that it admits so great a variety of modifications. Consider it purely and simply in the character of direct evidence—consider the asertion as evidentiary of the fact asserted by it, and nothing more,—all these distinctions vanish. By the assertion in question, the fact asserted is proved, or not proved,—that fact, and that fact alone,—according as the testimony is regarded as true or false.

In considering whether a given lot of self-regarding evidence belongs or not to the head of confessorial evidence, regard must be had, not to the conception entertained or not by the confessionalist himself, in regard to the consequences of it (whether to himself or others,) but merely to the use eventually made of it when exhibited in the course of the cause. The application of which it is regarded as susceptible being considered, the idea of reluctance on the part of the confessionalist will naturally enough be presented by the term confession, and its several conjugates. But if reluctance were looked upon as a necessary component circumstance, the extent of the idea thus annexed to the term would be found to fall far short of the extent that will be found necessary to be given to it on many of the occasions on which the demand for it presents itself. These occasions will be distinctly brought to view, when we come to speak of the different modifications of confessorial evidence. The case where the utterance of it is attended with reluctance, is but one out of many distinguishable modifications.

Of this species of evidence it being one characteristic property that the tendency of it is prejudicial, and that in any degree up to the highest, to him to whom it owes its birth; and another, that it comes out spontaneously, and without any application of the instrument, with the help of which, evidence of the same tendency is capable of being extracted from the unwilling mind by the hand of power; two doubts naturally present themselves as seeking for satisfaction: viz. to what causes it is capable of owing its birth? and to what others its introduction to the theatre of justice?

To the first of these questions an answer may be conveyed by so many specific denominations, each of them having the effect of indicating the cause (the psychological cause) to which the species so denominated owes its birth. To the other, an answer will be afforded by an indication given in each instance of the causes of transpiration; incidents, by the force of which it has been found in practice that evidence of the species in question has made its way to the theatre of justice.

1. First species of self-inculpative or self-criminative evidence, conspiratorial evidence. Discourse held amongst delinquents as to the time, place, means, and other circumstances, of the offence; whether already committed, or as yet but meditated.

Examples of the causes of transpiration:—1. Over-hearing; 2. Loss of papers by accident, by interception, by seizure; 3. Disclosure, with or without treachery, on the part of one or more of the co-delinquents.

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2. Simply confidential. A disclosure made (whether from any interested view, or merely in expectation of sympathy) by one or more of the co-delinquents, before or after the commission of the offence, to an individual who either was or was expected to be a partaker in it.

Transpiration causes, the same in this second case as in the first.

3. Jactitantial—directly or purposely jactitantial. The supposed offender, taking a pride in the offence, or in the reputation of having committed it, makes an intentional and unreserved statement of it, in a manner more or less circumstantiated, to one on whose part he expects on that account esteem or sympathy.*

Transpiration causes still the same.

4. Jactitantial through unadvisedness. In the view of conciliating esteem or sympathy, a man relates some act of his, in itself not criminal or otherwise obnoxious, but which (in one way or other) becomes evidentiary of the principal act—the act of delinquency in question.

Transpiration causes, still the same.

5. Simply unadvised, or unadvisedly colloquial. In the way of ordinary conversation, without any design of boasting, a man speaks either of some act of his own, or of any other incident, any other matter of fact, which—in virtue of some connexion, that he is not aware of, with the principal fact in question, the fact of his delinquency—operates in the character of an evidentiary fact in relation to it: for example, his having been in such a place at such a time.

Transpiration causes, still the same, except that there is no place for treachery, no confidence having been placed.

6. Unadvisedly exculpative. Finding or apprehending himself exposed to the imputation of the act of delinquency in question,—the supposed delinquent, in the view of wiping off the imputation, or screening himself from it, mentions in discourse some matter of fact, which, without his being aware of such its tendency, contributes to the contrary effect, as above.

Transpiration causes, as per last; no room for treachery.

7. Penitential, or penitentially confessorial. Though, by the supposition, the occasion on which it is delivered is here extra-judicial, it may happen to it to have been delivered in contemplation of its being judicially produced in evidence. If so,—here, as in the case of a confession or confessorial evidence judicially delivered, transpiration is out of the question. If so it were that the communication was made in confidence, it then, in respect of transpiration causes, coincides with simply confidential self-disserving evidence, as above. But, in this case, as in that other, it remains for inquiry, by what causes a course so repugnant to the universally-prevalent principle of self-preservation was produced.

8. Superior-benefit-seeking. By the pursuit of some benefit, it may happen to a man to make known some fact, which—without his being aware of it, or even though he be aware—may happen to contribute, in the character of an evidentiary fact, towards his being convicted of the offence in question. Probability and nearness, as well as magnitude, considered on both sides, it may happen that the value of the benefit shall be in his eyes so great, as to more than compensate for the risk of the whole mass of evil, punishment included, which he beholds attached to the offence.

The infirmative considerations applicable to the probative force of criminative circumstantial evidence of this class, seem capable of being designated in general terms by three words: viz. 1. Misinterpretation; 2. Incompleteness; 3. Mendacity.

1. Misinterpretation has in this case the effect that incorrectness on the part of the evidence itself has, if not misinterpreted: inasmuch as, though the evidence itself be not incorrect, yet the conception produced by it (either in the mind of the judge, or in the mind of the extra-judicially percipient witness, the ear-witness of the discourse, and through him in the mind of the judge) is incorrect and deceptitious; causing the supposed delinquent to be believed to have committed an act of delinquency which in truth he did not commit.

2. As to incompleteness; it depends upon the manner in which it is incomplete, whether the effect of it shall, to the prejudice of the supposed delinquent, be the same as that of incorrectness, or whether it shall amount to nothing more than the rendering the probative, the criminative, force of it, less considerable than if it had been nearer to the being complete.

3. By mendacity (here as elsewhere) is to be understood wilful and purposed incorrectness; where the evidence thus delivered, the discourse thus used, is incorrect, being rendered so wilfully, and on purpose.

1. Misinterpretation. By misinterpretation on the part of the judge, the deceptitious effect produced by circumstantial evidence of this description is susceptible of modifications, Edition: current; Page: [34] analogous to that already mentioned as producible by misinterpretation of preparations and attempts, directed in appearance, but (as in the case supposed it happened) not in reality, to the act of delinquency eventually committed. Instead of the act which, by means of the misinterpretation, is supposed and concluded to have been committed—under the supposition of its having been virtually acknowledged to have been committed,—the act really performed may have been—1. Blameless, though seeking secrecy; 2. Blameless, and not so much as seeking secrecy; 3. Imaginary: as, if the intimation given of it, whether directly or in the way of allusion or insinuation, was meant in the way only of sport or jest; or, if the act committed by the supposed delinquent, and meant by him on the occasion in question to be spoken of, was an act which, though culpable, was culpable in a different manner, or in less a degree, than the act which, from the consideration of such his discourse, is inferred from it, and believed to have been committed.

Many cases may be put, in which that which really is not a confession might be taken for and acted upon as such.

A paper is found, in the defendant’s handwriting, charging him, the defendant, with a crime. Though written by the defendant’s hand, it may have been the discourse of another person, and all of it false: simple curiosity, or even the intention of refuting it, in a private way, or with the assistance of justice, might have been his motive for copying it.

The poet Jean Baptiste Rousseau wrote a virulent libel, aspersing a multitude of respectable characters, Saurin’s among the rest, and circulated it in manuscript. Saurin, having borrowed one of these manuscripts, copied it with his own hand, for the purpose of answering it, or instituting a prosecution on the ground of it. Rousseau, hearing of this, or suspecting it, got possession of Saurin’s copy, and on the ground of it, with the help of some false evidence for the explanation of it, instituted a prosecution against Saurin, charging him with being the author of it. The truth was discovered by the vivâ voce examination of the false witnesses: and this, too, without the benefit of that sort of examination which, under the name of cross-examination, they would have undergone had it been in England.*

The confession may have been given in the way of jest: the whole of it, or any part, devoid of truth: neither, in fact, conformable to the truth of things, nor so much as meant to be taken for such.

A case of this description happened, if I have been rightly informed, not many years ago in England. From I know not what circumstances, a person, whom I will call Juraturus, was expected to be put upon the jury, in a cause of public expectation, in which the affections of political parties took an interest. A letter was written to him by Jocosus, conjuring him to see the defendant convicted, right or wrong. For this letter Jocosus was prosecuted, as for embracing (the name given by the English law to the act of extra-judicial solicitation, where the sort of ephemeral judge, called a juryman, is the subject of it.) The matter being somehow explained, Jocosus escaped conviction, or at least punishment administered under that name; but the costs of prosecution were in effect a punishment, and a very severe one. Had the testimony of the defendant been receivable in law, and known to be so, the prosecution would hardly have been instituted.

2. Incompleteness. It is evident that an extra-judicial confession may be incomplete to any imaginable degree. For—1. In the shape in which the discourse flows from the lips of the confessionalist, it may be loose and imperfect up to every conceivable degree of imperfection. 2. The interlocutor—who may be sensible, or to the highest conceivable degree insensible, of such its deficiency—may accordingly let it pass in such its imperfect state, without applying himself in any way to render it more complete. 3. Though he possessed, in ever so high a degree, the requisite inclination; the power, the effective power, of commanding and producing the requisite explanations, may on his part be deficient, in any conceivable degree.

3. The case of mendacity requires more explanation. To a first view, nothing can be more paradoxical than the case of a man’s having recourse to falsehood for the purpose of subjecting himself, perhaps to the punishment, at least to the disrepute, attached to a supposed act of delinquency which in fact he has not committed. In the relation between the sexes may be found the source of the most natural exemplifications of this as of so many other eccentric flights. The female umarried,—punishment as for seduction hazarded, the imputation invited and submitted to, for the purpose of keeping off rivals, and reconciling parents to the alliance. The female married,—the like imputation, even though unmerited, invited, with a view to marriage, through divorce. Even without view either to marriage, or to possession without marriage,—vanity, without the aid of any Edition: current; Page: [35] other motive, has been known (the force of the moral sanction being in these cases divided against itself) to afford an interest strong enough to engage a man to sink himself in the good opinion of one part of mankind, under the notion of raising himself in that of another.*

False confessions, from the same motive, are equally within the range of possibility, in regard to all acts regarded in opposite points of view by persons of different descriptions. I insulted such or such a man: I wrote such or such a party-pamphlet, regarded by the ruling party as a libel, by mine as a meritorious exertion in the cause of truth: I wrote such or such a religious tract, defending opinions regarded as heretical by the established church, regarded as orthodox by my sect.

In many cases, probably in most, the infirmative facts above brought to view will be seen to have no place: the import of the discourse, and its applicability to the purpose for which it is adduced, will be out of dispute. Though not complete (for it is seldom that a lot of extra-judicial evidence will be endowed with that completeness with which it is the object of judicial examination to endow it,) it will, as far as it goes, be thus far complete, that it will be sufficiently manifest that no addition which it could have received could have been of a nature to destroy, or materially to change, the inference. The act, to the imputation of which the confessionalist was exposing himself by this his discourse, was really his act—really done by him; nor was he, on the occasion of holding such discourse, acting in prosecution of any such eccentric and perilous a design as that of subjecting himself to an imputation known by himself not to be merited.

A distinction requires here to be noted, between the case where the evidence may be said to be designedly furnished, and that in which it may be said to be undesignedly furnished, having been obtained, as it were, surreptitiously, by the party by whom it is produced or offered to be produced, without the consent of the party whose confession is contained in it.

In the former case, it partakes, in a great measure, of the nature of judicial confessorial evidence: the person to whom it is delivered, though not a magistrate, yet, by the relation he bears (casual and momentary as it is,) may be considered as standing, in many respects, in the situation of a magistrate. The proprietor of stolen goods, having, by a train of indicative evidence, been led to the discovery of the thief, makes up to him, and charges him with the theft: the delinquent, through remorse, confusion of mind, or hope of favour, confesses the offence in all its circumstances, in a degree more or less particular. To extend the illustration, substitute for the case of theft the case of any other offence, of that class which supposes the existence of an individual exposed to special injury; and to the case of the proprietor of the stolen goods substitute that of the individual so injured.

The reason and use of the distinction is, that when, as here, the confessorial evidence is furnished ex propasito confitentis, the same causes that are capable of giving birth to false confession, when judicially exhibited, are capable of producing the same effect in the case where it is furnished extra-judicially, as here:—confusion of mind,—hope of commuting a severer punishment for a less severe one,—hope of obtaining mercy,—despair of acquittal, produced by prospect of false evidence.

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The opposite case, the case where the confession was obtained imprudentiâ confitentis, is the case which, on the former occasions referred to, was principally in view. The party, the confessionalist, has made a memorandum in relation to the fact, for his own use; this falls into the hands of the adverse party, who thereupon produces or offers it in evidence. In terms more or less particular, either direct or more or less indirect, the confessionalist has mentioned the fact in a letter to an accomplice or a friend: the letter falls into the hands of the adverse party, who produces it, or offers it, in evidence. The confessionalist has been overheard to mention the matter in conversation with an accomplice, a friend, or even (for no species or degree of imprudence is altogether without example) an utter stranger: through the medium of the extra-judicially audient witness, it comes round to the adverse party, who (with or without his good will) engages him to come forward with the information, in the character of a judicially-deposing witness.

From the differences that exist in respect of the mode in which the evidence was obtained in the two cases, result several other differences. When of a nature approaching to judicial, the extra-judicial confession (having conviction, or, at least, full information, for its object, either on the part of him who delivers it, or on the part of him to whom it is delivered) will naturally be more or less effectually shaped and adapted to that purpose. When obtained, as above explained, in a manner by surprise, neither the confessionalist, nor (in the case of hearsay evidence) his interlocutor or auditor, has any such object; nor has the interlocutor or auditor, generally speaking, any means of shaping the evidence to that object. The shape in which it presents itself will naturally be that of some broken scrap, variable ad infinitum in respect of form, and quantity of information.

In the case where, as above, it is furnished by a man as it were with a halter about his neck, the language will necessarily be direct and explicit; and in that respect, whatsoever it may be in point of precision (for precision will depend as much upon the party receiving the information as upon the party furnishing it,) nearly upon a par with that which it assumes when extracted by an official hand. In the case where it is furnished without apprehension of the use eventually made of it, it may indeed happen to the language of it to be equally direct and explicit (as is apt to be the case with libels;) but it is equally capable of existing in a form to any degree mysterious and indirect. It may consist of nothing but mere allusion; and, in any case, to find out a key to it, and apply it to the proof of the fact endeavoured to be proved from it, may be the task of argumentation and conjecture.

§ 3.: Of spontaneous confessorial evidence, judicially delivered.

For the advantage of viewing objects one at a time, the species of criminative evidence in question has hitherto been considered as being delivered as well without the intervention of interrogation, as without the intervention of the authority of a judge, present at the time. Of the intervention of these two circumstances, the consequences will be seen to be material.

If the self-criminative discourse be conceived to be held in the presence of the judge, it is not natural that (adequate power not being wanting) the use of so efficient a security for correctness as well as completeness should be foregone. But that which, in respect of its manifest mischievousness and absurdity, will be apt to appear most unnatural, is, under the influence of the sinister interest which gave birth to the technical system of procedure, but too frequently realized: for example, under English law, in the case of all those modifications of delinquency in relation to which the evidence is delivered in no other shape than that of affidavit evidence.

The scene of intercourse being now removed from the closet to the theatre of justice,—one consequence is, that, of the eight modifications of self-disserving evidence above brought to view, five stand excluded, as being incapable of finding entrance into a place so defended. These are—1. conspiratorial; 2. simply confidential; 3. purposely jactitantial; 4. unadvisedly jactitantial; and, 5. simply and unadvisedly collognial. Superior-benefit-seeking, a modification under all circumstances rare and eccentric, is, by the authority of a present (though mute and inactive) judge, rendered still more unlikely to be hazardeo, still more so by the presence of an interrogating judge.

Remain, as the only two modifications of self-disserving evidence natural to the spot now in question,—1. unadvisedly self-exculpatire evidence; and, 2. penitential or penitentially confessorial evidence.

To ground conviction, confession (it has been said) ought to be perfectly free, not produced either by hope or fear. Such is the language we frequently meet with in English law books. Reason is here obscured by a covering of absurdity. Accused or suspected of a crime, guilty or innocent,—what but hope or fear should induce a man to speak? Guilty, in particular, what but hope or fear should induce a man to confess? Confession without hope or fear, is an action without a motive, an effect without a cause. It is more: it is an action without an inciting motive, overcoming a force (and that a mighty one) of restraining Edition: current; Page: [37] motives. It is as if, on a level billiard-table, a ball should run into one of the pockets, not merely without being struck with the mace or cue, but in spite of the impulse of the instrument striking it in a direction exactly opposite.

What there is of reason in the rule amounts to this:—A judge, in examining an accused or suspected person, should be upon his guard against the sinister inducements, to the action of which a man in such a situation is exposed.

The causes which may be capable of giving birth to evidence of the description in question, when it is not true, come now to be enumerated.

I. Causes capable of giving birth to untrue confessorial evidence, even when plenary.

1. Guilty of a greater crime (i. e. a crime more severely punished than the crime now charged,) a man makes a confession of the crime now charged, in order to avoid the severer punishment: or, being charged with two crimes, he confesses the less, to avoid being punished as for the greater: and so in regard to facts subjecting a man to non-penal damage, or otherwise to an obligation of an unpleasant cast.

2. Not guilty of the crime charged, nor, consequently, being justly subjectable to the punishment annexed to it,—but exposed, or conceiving himself exposed, to undergo some severer suffering (whether on the score of criminality or any other) at the hands of the prosecutor, or some other man in power, to whom it would be acceptable that he should suffer as for the offence in question,—he makes confession of it accordingly, in the hope of thereby escaping such severer suffering.

Various is the description of the person by whose power (i. e. by the hopes and fears that point to it) a man may be drawn into a false confession. It will depend in a considerable degree upon the nature of the offence: an ordinary offence, or a political offence. It may, accordingly, be a private individual; it may be, in a monarchy, the monarch, or one or more of his ministers; in a commonwealth, some officer or some individual invested by law or influence with appropriate power; it may be (though without atrocious abuse of judicial power it cannot be) even the judge.

3. If, in the case above supposed—hoping, as above, to mollify the enmity of his too potent adversary—he regards the stream of the evidence as likely to run against him, and with a force sufficient for conviction (though this be what, by the supposition, cannot take place without falsehood somewhere;) an adequate motive—a cause adequate to the production of the supposed effect, viz. that of a false confession—will in this way too be exemplified.

4. Lastly, the same effect is capable of being produced by mere confusion of mind; the state of mind producible in a man by terror—by the contemplation of his impending fate.

The case of false confession is a case which, in the present state of jurisprudence among civilized nations (including a century or so under the notion of present time,) has seldom been exemplified: so at least one wishes and hopes to be able to believe, for the honour of governments and of human nature. The only instance in which it has been in any degree frequent, even for some centuries past—and in this instance it has been but too frequent—is that of a case in which the fact was not only false, but impossible, I speak of the case of witchcraft. Turn which way we will—to France, to England, to North America—we shall find wretched women not only convicted, but confessing themselves guilty, of that imaginary crime. So at least say the accounts that have been transmitted to us. In these deplorable instances, in what shape has the confession been conceived? To produce a frantic cry of guilty—to produce the mark of a trembling hand to a paper full of calumnious lies, contents known or unknown—these are effects to the production of which confusion of mind may be fully adequate, in the instance of the weakest and most ignorant certainly not less than in that of the strongest and best-informed minds. But to produce, and produce extempore, a circumstantial and consistent account of intercourses and conversations with an imaginary being,—this would be scarce possible even to the strongest; and, if possible, where should be the inducement, when the consequence was the being hanged or burnt?

To guard against false confessions, therefore, the two following rules ought to be observed:—

1. One is, that, to operate in the character of direct evidence, confession cannot be too particular. In respect of all material circumstances, it should be as particular, as, by dint of interrogation, it can be made to be. Why so? Because (supposing it false) the more particular it is, the more distinguishable facts it will exhibit, the truth of which (supposing them false) will be liable to be disproved by their incompatibility with any facts, the truth of which may have come to be established by other evidence. The greater the particularity required on the part of the confession, the greater is the care taken of the confessionalist,—the greater the care taken to guard him against undue conviction, brought on upon him by his own imbecility and imprudence.

2. The other rule is, that, in respect of all material facts (especially the act which constitutes the physical part of the offence,) it ought to comprehend a particular designation Edition: current; Page: [38] in respect of the circumstances of time and place. For what reason? For the reason already mentioned: to the end that, in the event of its proving false (a case not impossible, though in a high degree rare and improbable,) facts may be found by which it may be proved to be so. “I killed such a man” (says the confessionalist, mentioning him,) “on such a day, at such a place.” “Impossible” (says the judge, speaking from other evidence:) “on that day neither you nor the deceased were at that place.”

But time and place are both infinitely divisible. To what degree of minuteness shall the division be endeavoured to be carried for this purpose? A particular answer, that shall suit all cases, cannot be given. The end in view, as above stated, must be considered, and compared with the particular circumstances of the case, in regard to either species of extension, ere the degree of particularity proper to be aimed at by the interrogatories can be marked out. Under the head of time, the English law, in the instrument of accusation, admits of no other latitude than what is included in the compass of a day. The nature of things did not, in this instance, render uniformity impossible: the parts into which time is divided are uniform and determinate. Place—relative space—is not equally obsequious: the house? yes; if the supposed scene of the supposed transaction be a house: the street? yes; if the scene were in a street: but a field, a road, a common, a forest, a lake, a sea, the occan; any of these may have been the scene.

The question therefore still recurs upon us, and at the same time the difficulty of finding a general answer for it recurs undiminished. Supposing the confession—the narration—false,—will the intimation which it has been made to include of time and place be sufficiently particular to enable the judge, supposing it to be false, to extract sufficient proof of the falsity of it from other evidence?

Between the degree of particularity to be looked for in the article of place, and the degree of particularity to be looked for in the article of time, there will be a mutual dependence. Supposing it clear from other evidence, that, on a given day, the confessionalist and the deceased were upwards of two days’ journey distant from one another,—the specification of the day on which, in the false confession, the murder is stated to have been committed, will be sufficient to prove the falsity of the confession—to prove the non-delinquency of the confessionalist. But suppose the distance no more than two hours’ journey,—the specification of the day will, it is evident, not be sufficient for the same purpose: he should be called upon to fix the very hour: the hour becomes as material in this second case, as the day was on the first.

In the wording of the instrument of accusation, particularity in respect of both species of extension is insisted upon, and evidently for the reasons above given, by the English law. But, between the case of an indictment (a statement of the offence, as drawn up by an accuser,) and a confession, whereby the defendant himself becomes as it were his own accuser, there is in this respect a great difference. In the case of the instrument of accusation, compliance with this requisition, however desirable, may, in respect of this or that degree of particularity, be impossible. Why? Because, antecedently to the exhibition of the whole mass of obtainable evidence (though ultimately that evidence should prove ever so satisfactory,) it is but natural that an accuser should be in the dark; while (supposing the charge true, and the defendant willing to confess the fact,) that same degree of particularity which it was altogether out of the power of the accuser to give to the relation, may be exhibited in the confession of the defendant without any difficulty. For from whom can so precise an account of a man’s acts be expected as from the man himself (especially acts of such moment to himself,) so he be but disposed to give it?*

§ 1.: Of interrogation in general, as a means of extracting self-disserving evidence.

Interrogation has already been mentioned* as the most efficient, and (in case of doubt) the indispensable, instrument for the extraction of truth—complete truth—in favour of whichsoever side of the suit it militates.

On both sides, its property is to clear up all doubts—all doubts produced or left by other evidence—doubts which without its aid can never be cleared up. Possessing this property, it is not less favourable to innocence than adverse to delinquency. All suspected persons who are not guilty, court it; none but the guilty shrink from it.

Antecedently to the application of this test, the mind of the judge remaining in doubt as between innocence and delinquency (viz. in which of the two opposite states the mind of the defendant shall be considered as placed,) the process is directed indistinctly to the production of the one or the other of two opposite results:—in the case of non-delinquency, self-exculpative testimony; in the case of delinquency, confessorial testimony, ending in confession.

But confessorial testimony, having punishment, or evil in some other shape, for its visibly impending consequence, does not, in the ordinary course of things, come willingly, or singly, or in the first instance. The instrument being applied, some course, on the part of the proposed respondent, cannot but be taken. Instead of this most visibly dangerous course, he betakes himself (if not definitively, at any rate in the first instance) to all other possible courses; no other course presenting to view the image of punishment as following with a step so sure. But, of all these possible courses, if the proposed respondent be really delinquent, there is not one that will not (if the judge be at the same time willing and at liberty to follow the manifest dictates of justice and common sense) operate, with a degree of probative force more or less persunsive, towards conviction: because that which is visible to common sense, as being consonant to constant and universal experience, is, that there is not one of them all that a man ever betakes himself to and persists in, in case of veracity and innocence.

True self-exculpative testimony being by the supposition incapable of being delivered,—his constant resource (were it not for the inferences which, on such an occasion, every man, as is visible to him, would draw from it) would be silence. But silence being in such a case, by common sense, at the report of universal experience, certified to be tantamount to confession, though by a mode of expression as general as possible—tantamount, at any rate, to the purpose of disrepute, if not to the purpose of legal punishment,—this is (excepting confession in particular and explicit terms) his last resource.

Thus repelled from that which would otherwise be the easiest as well as safest course, his next endeavour is to tax his invention for such statements of an exculpative tendency, as, though false, shall present the fairest prospect of being taken, from first to last, for true. But, besides the difficulty, a defence of this kind is attended with constant and manifest peril; for no sooner does any statement present itself, which by its inconsistency with other statements of his own already delivered on the same occasion, or with facts understood from other sources of information to be true, is understood to be false, and believed at the same time to be wilfully false,—than another evidence of delinquency is afforded, still more probative and impressive, because more particular, than mere silence.

True self-exculpative discourse is not to be had. Silence would operate as confession. Of a course of false responsion, if understood to be false, and the falsehood wilful, the effect would be still worse than that of silence. False responsion of an exculpative tendency, in any shape that promises security against detection, not being to be found,—his next endeavour is to find, and to obtain acceptance for, such discourse as, at the same time that it affords no inculpative evidence, shall not be liable to be taxed with being false. Discourse of this description is that which, in respect of its object, is termed evasive, and in respect of its nature is either irrelevant or indistinct; for being relevant, and at the same time distinct, it could not fall to be either true or false.

If nothing of this cast be to be found, or if his employable stock of it be exhausted, he has then left but one alternative, which is either silence, as above, or confessorial evidence; which (in so far as true) it depends upon the interrogator to draw on till it terminates in confession.

But, after interrogation—which (coming from a person whose station, by office or by the occasion, is that of a superior) is, in other Edition: current; Page: [40] words, an order requiring a man to speak—silence is an act of disobedience. Confessorial discourse is the result of submission—of compliance. Of non-compliance with his will it is the property to call forth ill-will on the part of him towards whom it is manifested, especially of the man in power; of compliance, good-will. Silence, therefore, on the part of the affrighted culprit, seems to his ear to call for vengeance; confession holds out a chance for indulgence.

While devising and pursuing a plan of self-exculpative misrepresentation, the discourse held by the delinquent will naturally be of a motley cast, presenting a mixture of falsehood, evasion, and truth. Falsehood, under the apprehension of the discredit which attaches instantly upon detection, will be hazarded then, and then only, when evasion seems no longer practicable, and the response, if true, could not be otherwise than manifestly confessorial. Truth, then, will almost always form, and that in no inconsiderable proportion, a part of the delinquent’s self-exculpative tale. But such and so visible is the connexion between truth and truth—between the fact of delinquency and all the several facts that have accompanied or led to it,—that, of the admixture of truth thus unwillingly inserted, a portion more or less considerable (in one way or other, with or without his knowledge,) though designed to operate in a way opposite to confession, will operate in effect in the character of confessorial evidence.

And thus it is, that—by one and the same process, the process of interrogation (where the respondent who is suspected to be a delinquent is really so)—in spite of, and in consequence of, the endeavours used by him to impress the persuasion of his innocence,—silence or non-responsion, evasive responsion, false responsion, confessorial responsion (one or all of them, in infinitely diversifiable proportions,) will be extracted: each of them contributing to conviction; each of them evidentiary of delinquency,—operating in the common character of self-disserving, to wit, self-inculpative, or self-criminative, evidence.

In species and denomination, the infirmative considerations applicable to self-disserving evidence thus extracted by interrogation, are the same as those applicable to evidence from the same source and of the same tendency, when delivered without interrogation.

But, in respect of force, they are, in every instance, decidedly inferior. Why? Because, in every instance, the infirmative considerations are mere suppositions—suggestions of states of things neither proved nor so much as probabilized, but merely brought to view as being at the same time possible, not glaringly improbable, and not disproved, in whatsoever degree disprobabilized.

But, of the process of interrogation, by whomsoever performed (if performed with an impartial view, or, what comes to the same thing, with partial views on both sides,) it is the known object and effect, by the most efficient means, to clear up all such uncertainties.*

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§ 2.: Difference, in point of effect, between extra-judicial and judicial interrogation.

Compared with each other, self-inculpative evidence extracted from a supposed delinquent by extra-judicial interrogation, and evidence of the like denomination extracted by judicial interrogation, have their natural points of advantage and disadvantage, the observation of which is pregnant with instruction of practical use:—

1. To extra-judicial interrogation, considered as an instrument for the extraction of truth from unwilling lips, belong naturally two disadvantages: comparative deficiency in respect of coercive power; and comparative deficiency in point of intellectual skill.

Of these disadvantages, however, neither is constant in point of existence, or uniform in degree.

The interrogator is not indeed himself the judge,—the judge by whom the decision, grounded on the evidence so extracted, is to be pronounced. But on this head (unless where, in virtue of some particular connexion, the supposed delinquent is, by sympathy or any other cause, assured of concealment on the part of his interrogator) the difference will not be very considerable; inasmuch as every question will naturally present itself as if backed by the authority of the judge.

2. In the process of interrogation, the casual interrogator will not in general possess experience, nor (so far as depends upon experience) skill, equal to what may be naturally expected on the part of the judge. But, in this respect, the father or other head of a considerably numerous family, will not in general be much behind even an official judge: and whatsoever superiority in point of acquired skill may be expected to have place on the part of the official judge, the superior interest and zeal that may no less reasonably be looked for on the part of the domestic interrogator may be considered as forming in general no inadequate compensation.

On the other hand, in the circumstance of surprise may be seen a circumstance from which the situation of the domestic interrogator will be apt to derive a considerable advantage. From the domestic inquirer may come a question, or string of questions, at a time when no thoroughly-considered plan of mendacious defence can as yet have been adjusted; whereas the interval between arrestation and judicial interrogation will afford for the purpose of mendacious invention (not to speak of mendacious suggestion in case of concert amongst co-delinquents) a quantity of time over and above whatsoever in the same individual case the delinquent could have applied to the purpose of his defence against the casual inquisitiveness of extra-judicial interrogators.

One great, and, as it should seem in general, decisive, advantage, attaches beyond dispute to the side of the judicial interrogator. It rests with him to continue the process of interrogation (that is, to keep the supposed delinquent in a state of subjection to it) for whatever length of time appears to him to be necessary and sufficient for the purpose—for the extraction of whatever mass of evidence the proposed respondent is looked upon as capable of yielding—for the extraction of it in all its plenitude.

On this occasion, there are four distinguishable objects with which self-disserving evidence, extracted by judicial vivâ voce interrogation, will require to be compared; the evidence being in all four cases supposed to issue from the same source (i. e. from the same individual,) and to be of the same tendency;—viz. 1. Evidence delivered extra-judicially, and without interrogation, by word of mouth; 2. Evidence delivered extra-judicially, and without interrogation, in a written form; for instance, in the form of a private memorandum, or of a letter, sent or not sent, 3. Evidence delivered extra-judicially, in consequence of interrogation by word of mouth; 4. Evidence delivered extra-judicially, in consequence of interrogation in a written form.

Expressed in the written form, the evidence, taken in itself, is more apt to be incomplete; and in such a way incomplete, as, in respect of partiality, to be deceptitious. Why? Because, on the occasion of writing, the writer (the supposed delinquent) has in general more time at command for the purpose of mendacious invention; nor are the workings of his invention in a situation to receive that disturbance which it is natural they should receive, from the presence of a person at whose hand hostile suspicion (or at any rate prying curiosity) and consequent interrogation, whether eventually applied or not, will naturally be apprehended.

When delivered in the form of a letter, the person to whom the statement is addressed must, for a length of time at least, take it as it comes. Delivered orally, no sooner are gaps discovered in the texture of it, than comes a question requiring them to be filled up;—no sooner ambiguity or obscurity, than the clearing of them up. Self-regarding evidence, delivered by a delinquent in the written form, Edition: current; Page: [42] will, therefore, be more likely to be deceptitious, i. e. guarded against detection, and so effectually as to produce the deception aimed at by it; viz. where deception was an object which it had in view. But in some cases it has no such object; as when the cast of it is conspiratorial, simply confidential, or jactitantial.

At the same time, such as it was delivered—delivered from the mind of the writer,—such, and without alteration, without being exposed to be misreported, it is sure to be presented to the mind of the judge: whereas, if delivered in the oral form, it will always be liable to alteration—liable to be misreported by the deposing witness, through the channel of whose lips (it being extra-judicially delivered in the first instance) it cannot but have passed.

As to interrogation in the written form (as when statements which have been extra-judicially delivered have eventually been made use of as evidence, and thereupon have assumed that responsive form of which interrogation, when submitted to, is naturally productive;)—it is a possible case, but a case not by any means likely to be frequently exemplified; rarely indeed, when compared with the form which discourse so readily assumes under the process of interrogation when performed by word of mouth. Why? Because, out of the presence of the interrogator, compliance with the command expressed by interrogation is, if irksome, refused without difficulty: evasive responsion, if responsion be resorted to, is more easy: silence, being liable to be accounted for by so many other causes besides delinquency, is resorted to with less reserve. A plan of self-exculpative mendacity is pursued with more time for the continuance of it, and with better promise of success; and, from amongst the truths which, to guard against detection, it may be necessary to intermix, a selection is made with greater facility and safety, of those which (for fear of their being found to operate with a self-disserving, a self-inculpative tendency) require, and may (it is supposed) bear, to be omitted.

Of discourse orally delivered it is moreover the nature, when the apprehended tendency of it is (as here) self-criminative, to bring with it another species of criminative circumstantial evidence (which will be brought more particularly to view in another chapter,) viz. fear, as indicated by deportment, more particularly passive deportment; and from an accompaniment thus treacherous it is a characteristic property of written discourse to be altogether free.

Meantime, howsoever (being orally delivered) the evidentiary self-criminative discourse may have been accompanied with any such symptoms, in the state in which on the extra-judicial occasion it was delivered to the percipient witness (interrogating or not interrogating,) by whom, in the character of a deposing witness, it is reported to the judge;—yet, when thus reported to the judge, it comes accompanied, not by the symptoms themselves, but only by the report so made of them: to which report it may happen to be in any degree incorrect or incomplete, or both.

Of the comparative view thus taken, what is the practical result? Not preference, followed by adoption and rejection, but conjunction. Each mode and form is marked by its peculiar advantages, counteracted by its peculiar disadvantages: both, therefore, should be called in to the assistance of justice.

Expressed originally, whether in writing or in conversation, the probability is, that the evidence in question (especially being, as it is, self-regarding, and subject to the risk of being found self-criminative) will abound with gaps, with dark passages, with broken hints. All these imperfections, the judge, and he alone, is competent to do what can be done towards remedying. In his hands alone is reposed adequate power, and whatsoever time, in his view of it, the occasion needs.

Self-inculpative discourse, when it is uttered extra-judicially (designedly or undesignedly, with or without a view to its being employed as evidence,) can never be an adequate succedaneum to judicial confession, the plenitude of which is secured by judicial examination. In the former case it is not itself the proper evidence; it is no more than indicative of the source from whence conclusive evidence may by the proper process be obtained, and of a sample of what may be expected from that source. It is not the best—the most satisfactory, evidence that the case furnishes; it shows where better, where still more satisfactory evidence, is to be had: and it may require completion and explanation (not to speak of opposition and confutation,) not only for the benefit of the party by whom it is produced, but even for the benefit of the party whose confession it is, and against whom it is produced.

But although it be thus indicative of a lot of evidence more satisfactory than itself, the use of the inferior is not always superseded by the superior evidence.

1. A case that happens not unfrequently, is this:—after a true confession more or less full, delivered extra-judicially,—when the confessionalist comes to be examined in a judicial mode, he repents, and, instead of confirming the truths he has disclosed, betakes himself to falsehood. When the extra-judicial confession was suffered to escape from his lips, the debt thus paid to truth had the confusion of mind he had been thrown into for Edition: current; Page: [43] its cause: his presence of mind regained, he endeavours to avail himself of it, and attempts to take back the lights that had transpired from him when off his guard. As one man is confronted with another, the interests of truth and justice require that, in such a state of things, a man should be confronted with himself. The extra-judicial confession may be consistent with facts established from other sources: the judicial retraction may be alike inconsistent with the extra-judicial confession and with these established facts. The extra-judicial confession may obtain credence: the judicial retractation may with reason be disbelieved.

2. Even when the two lots of information accord—when the extra-judicial confession, instead of being contradicted by a judicial retractation, is confirmed by a judicial confession—the extra-judicial confession may be not altogether without its use. The first confession giving confirmation to the second, as well as receiving confirmation from it, may serve to render more complete the satisfaction of the judge.

3. Where the judicial confession accords with the extra-judicial, the utility of it will be still more apparent, in the case where both of them happen to stand contradicted by other evidence. How should this happen? (it may be said.) The defendant has himself acknowledged the offence—acknowledged it once and again: what hope can remain to him to overthrow the effect of this double acknowledgment by inferior evidence? of the two acknowledgments, by evidence that is not a match for either?—To him, to the same man, not. But a case that may happen, and does happen not unfrequently, is—the evidence that a man gives against himself applies with equal pertinency to the case of another man; say, as in a criminal case, an accomplice.* The confessionalist acquiesces, as he cannot but acquiesce, in the consequences of his confession thus repeated and confirmed. But the second accomplice, having his separate plans of defence, having hopes where his confederate has none, denies the truth of the confession, and seeks to combat it by other evidence.

4. Lastly: Another case that may happen, and which will on another occasion† be brought to view is,—after furnishing the extra-judicial evidence, and before there has been time or opportunity for following up the indication by judicial examination, the confessionalist dies, or ceases to be forthcoming. By his death, the possibility of inflicting punishment (punishment rightly seated) ends; and therefore, so far as punishment is concerned, there the cause ends; and therefore the demand for other evidence, for judicially-extracted oral evidence, along with it. As to punishment, yes; and therefore as to causes in which punishment, and nothing but punishment, is or ought to be demanded.‡ But as to satisfaction, the demand for decision may remain, and therefore (for the purpose of a decision on that ground) the demand for evidence. While the confessionalist was alive, his extra-judicial confession was, in comparison with his judicial deposition (if subsequently taken,) but an inferior kind of evidence. The source, however, of the superior evidence being dried up by death, the inferior, the extra-judicially confessorial evidence, takes its place,—a species of evidence which, howsoever inferior to the confessorial part of the judicial evidence from the same source, is, as far as it goes, superior (as we have seen) to every other species of evidence.

Thus far as to penal cases. In cases not penal, the necessity of employing it is still more evident.

The necessity of treasuring up and employing this species of extra-judicial evidence will be equally evident, where the completion of the confession, by the judicial examination of the confessionalist, has been rendered impracticable for a period, determinable or indeterminable, but not known to be perpetual, such as absconsion or expatriation.

So much for the importance of interrogation, as applied to the extraction of self-disserving evidence from the suspected delinquent.

No supposition surely can be more unnatural than this,—viz. that, if discovery of truth, and consequent rendering of justice, had been the object, the use of an operation so necessary to the discovery, so obviously and indispensably subservient to the purposes of justice, would ever have been rejected. But, under the technical system, the interests and ends of judicature being, from first to last, opposite and hostile to the interests and ends of justice,—whatever exertion and ingenuity has been bestowed, is applied, not to the discovery of truth, but to the finding of pretences for not discovering it: not to the administering of justice, but to the finding of occasions and pretences for administering injustice in its stead.

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Governed, if not by sinister reason, by blind caprice under the mask of tenderness, English lawyers, admitting self-disserving evidence when supposed to have been extrajudicially delivered or extracted, forbid it to be judicially extracted or received—extracted by the judge by whom the decision is to be formed. Receiving it in an incomplete state, they will not suffer it to be completed. Receiving it in the state of hearsay evidence, they refuse to receive it in the state of immediate unaltered evidence. Receiving it in a variety of bad shapes, they refuse to receive it in what, by their own uniform acknowledgment, is the best.*

Tenderness!—to whom? To the innocent individual, maliciously or erroneously accused? No: what it does for him is, where misrepresentations have taken place tending to his unjust conviction, to refuse him an opportunity of clearing them up.

To the guilty? No, not even to the guilty, considered in the aggregate. By the promise it gives of escape, it augments the number: the number being so great, thence comes the pretended necessity, the factitious demand, for excessive punishment:—the deficiencies in certainty must be made up in magnitude. Death is the English judge’s universal remedy: higher he cannot screw up the exertions of blind barbarity. To this point the labour of every session adds: at this a stop is made, because there is nothing beyond it.

It is the part of the same man, the same natural and implacable enemy of justice—on the one hand, to keep watch and ward in favour of the murderer, charging him not to let drop any the least hint from which justice may receive assistance, not to say anything by which his guilt may be brought to light; and, on the other hand, to be no less active in his exertions to extend the demesnes of death. To the profit of cold barbarity, he adds the praise of tenderness. The manly dictates of public utility are sacrificed to the cant of hypocritical or childish sentimentalism. The excess of the punishment becomes a sufficient warrant for not executing it. Extending the demesnes of death, he thus extends the mass of his own despotism: of that preposterous state of things by which, every year, the lives of men, by dozens and by scores, are laid at the feet of every English judge.†

CHAPTER VIII.: OF CONFUSION OF MIND, CONSIDERED AS AFFORDING EVIDENCE OF DELINQUENCY.

Another modification of subsequential circumstantial evidence is confusion of mind:—confusion, as expressed and betrayed whether by countenance, by discourse, by conduct, or by all three. This may also be considered as a sort of sub-modification of circumstantial evidence; a modification of confessorial evidence: with this difference only:—Confessorial evidence is personal evidence; confusion of mind is real evidence:—The presumed state of mind, the state of mind evidenced by the external indications, is psychological real evidence; the indications themselves, physical real evidence.

Hesitation alone—hesitation without confusion—would be misinterpreted if it were looked upon as an indication of falsehood; much more if of wilful falsehood. Hesitation has for its cause—its most natural and frequent cause—anxiety to shape the narrative by the exact line of truth, accompanied with a difficulty a man experiences in his endeavours to accomplish it. Correct memory, and adequate expression, are both necessary to this end: by the consciousness, or even mere apprehension, of tailure in either article, hesitation may be produced.

The most careless and least scrupulous of witnesses are frequently among the most fluent.

Suspicion, indeed, is not altogether without ground, when, to hesitation, confusion is added. Confusion is the result of consciousness of manifested inconsistency, of inconsistency with itself or with indubitable truths,—a repugnancy which is among the surest indications and proofs of falsehood: but, of any such inconsistency, a man who means nothing but the truth is not in much danger of labouring under any serious apprehension. The truth, and nothing but the truth, is what, by the supposition, he means to hold up to view. Truth cannot be inconsistent with itself: two truths, parts of one and the same complex truth, cannot be inconsistent with each other. Truth, in all its parts, is the one thing, and the only thing, his memory is in search of. In regard to some parts, at any rate, he is singularly unfortunate if he cannot make sure to himself of possessing it: these parts he will at any rate adhere to. Others, of which his hold is not so strong, he will adhere to no otherwise than upon the supposition of their being compatible and consistent with those fundamental stronger ones. Should any inconsistency display itself, he will abandon these weaker points, without difficulty and without confusion, that is, without shame or other fear: having nothing to suffer from the temporary mistake—no point of his own to lose by it.

Confusion affords a presumption, more or less strong, of the fact contested by the party; but not absolutely a conclusive one. It proves alarm; and, in the case in question, the most natural cause of alarm is the apprehension of seeing the contested fact taken for true. But Edition: current; Page: [45] this, though in the sort of case in question the most frequent and natural cause of the alarm, is by no means the only one.

1. It may be, that,—although the fact in question, the fact contested by the party, was not true,—yet some other fact, the declaration of which would in some other way be prejudicial to him, was true: and that the alarm was produced by the apprehension of seeing this other fact brought to light.*

2. It may be, that, in respect of the fact in question (the offence in question,) appearances are against him, notwithstanding his perfect innocence; and the consciousness of this circumstance may be the cause of his confusion.

CHAPTER IX.: OF FEAR, IN SO FAR AS INDICATED BY PASSIVE DEPORTMENT, CONSIDERED AS AFFORDING EVIDENCE OF DELINQUENCY.

A class of cases has already been brought to view,† in which the principal fact in question (viz. delinquency in this or that shape) cannot be probabilized by the evidentiary fact deposed to before the judge, without the intervention of some other fact or facts, constituting, together with the principal fact and the evidentiary fact, an evidential chain of a peculiar nature. The case where fear, howsoever supposed to be manifested, is the fact considered as evidentiary of delinquency, belongs to this class.

In a chain of this sort, the number of links will be different, according as it is to the perceptions of the judge himself, or to those of some other person by whom, in the character of a deposing witness, it is reported to the judge, that the fact here considered in the character of an evidentiary fact (viz. fear) presents itself.

First, suppose the judge himself the person to whose senses the fear (i. e. the appearance of fear) manifests itself. The links of the evidentiary chain will then succeed one another in the manner following, viz.:—

1. Link the first (group of evidentiary facts immediately presented to the senses of the judge,)—symptoms of fear. These, being objects of sense, must all of them be such as come under the description of physical facts.‡

2. Link the second,—the emotion of fear: a psychological supposed fact, inferred and supposed to be probabilized by these physical appearances;—fear, having for its supposed cause the expectation of the evil consequences (legal punishment included) considered as attached to the offence in question, by means of the ensuing links.

3. Link the third,—self-inculpative recollection: the memory of the supposed delinquent presenting to him the wrongful act as having been committed by him; viz. the physical act, positive or negative, accompanied with its criminative circumstances.

4. Link the fourth,—the criminal act itself, as above.

In an evidentiary chain of this sort, it has Edition: current; Page: [46] been already mentioned as the principal use of, and reason for, the operation of distinguishing link from link, that to each link belongs a distinct set of infirmative considerations, capable of operating in diminution of its probative force. The truth of that observation will be found exemplified in the present instance.

In this case, the chain of inference by which these four distinguishable links are connected stands thus:—1. From the physical appearances, regarded as symptoms of fear, the existence of that emotion is inferred; 2. From the supposed existence of that emotion, the existence of the criminative recollection above mentioned; 3. From the existence (viz. the present existence) of that recollection, the existence (viz. the past existence) of the criminative fact itself.

In relation to the second of the above three inferences, what must be observed is, that, for the purpose of forming the inference, the nature of the occasion is an object that must indispensably be called in; since, but for this, even supposing fear to be the emotion sufficiently established by the symptoms, this emotion might have had any other cause than the particular cause thus ascribed to it.

But for the occasion, the probative force of this circumstance would scarce amount to anything: add the occasion, and of itself it cannot but be very considerable. Infirmative considerations there are, as will be seen, to the disprobabilizing force of which it stands exposed; but of these—of all these taken together, the disprobablizing force (it will be seen) will not in general be very considerable.

The occasion here in question is the circumstance of the supposed delinquent’s being taxed with, or being supposed by himself to be suspected of, the particular act of delinquency in question: the existence of which occasion is always part of the case.

The second link is constituted, therefore, properly speaking, not of the fear alone, but of the fear combined with the occasion; since it is by the occasion that the existence and operation of those other possible causes, which will be brought to view in the character of infirmative possibilities, will be rendered improbable.

It is with this psychological sort of chain, as with a physical one: the chain is the weaker, the greater the number of links which enter into the composition of it. Why? Because each link brings with it is particular infirmative possibilities.

I. Inference forming the joint or connexion between link the first, viz. physical supposed symptoms of fear—and link the second, viz. the emotion of fear itself.

2. The cause of the appearances different: a psychological fact, indeed, and that an emotion, but a different emotion, such as grief or anger: grief or anger produced, for example, by the consideration of the wound inflicted on reputation, notwithstanding innocence.

II. Inference forming the connexion between link the second, viz. the existence of the emotion of fear—and link the third, viz. the existence of a criminative recollection, having for its subject the particular offence of which the supposed delinquent understands himself to be accused or suspected.

Infirmative possibilities applying to this inference:—

1. Recollection criminative indeed, but not in the way in question: recollection of an offence committed, but an offence different from that of which the supposed delinquent stands accused or suspected.

2. Recollection of an offence committed, not by the individual himself, but by some other individual connected with him by some tie of sympathy, and in whose instance the inquiry, it is apprehended, may be productive of conviction or suspicion.

3. Recollection of a fact by means of which, without any delinquency on his part, vexation has been, or appears likely to be, produced, in this or that shape, to himself,

4.—or to another person, or even a class of persons, more or less extensive, connected with him by some tie of sympathy.*

5. Apprehension of punishment, notwithstanding innocence. Of this infirmative probability the disprobative force will depend, it is evident, in a considerable degree, upon the general complexion and character of the system of procedure under which the inquiry is made.

6. Contemplation, prospect, of the vexation attached to prosecution, notwithstanding innocence: another circumstance the infirmative force of which will be seen to depend, more or less, on the system of procedure.

III. Inference forming the connexion between link the third, viz. supposed recollection of the criminative fact in question as committed by him—and link the fourth, viz. the actual commission of the act so supposed to be recollected.

Infirmative possibility:—

Falsity of the supposed self-criminative recollection.

The error here supposed will present itself as being of a nature not very apt to be realized. It is capable, however, of taking place, Edition: current; Page: [47] not only in case of mental derangement, but in the case of habitual delinquency; especially if the time of the supposed offence be very remote.

Apprehended and examined, though for a theft in which he had no part, an habitual thief will naturally enough exhibit symptoms of fear; and, confounding one of his exploits with another, may suppose himself to recollect a theft in which in truth he bore no part.

Such are the conceivable facts which, in the character of infirmative probabilities, apply to the criminative force of fear, when the symptoms of it apply themselves without the intervention of any other medium to the senses of the person by whom, in the character of judge, the conclusion is to be formed—the decision grounded on them formed and pronounced.

If, instead of the phenomena themselves being presented to his senses, what is presented to him is but a report made concerning them by some other person, by whom they are stated as having been presented to his senses,—the probative force of them stands, in that case, subject to the infirmative operation which attaches upon supposed unoriginal evidence, as compared with the original evidence itself: an infirmative circumstance of the same nature as that by which (according to a distinction already noticed) supposed real evidence reported, is distinguished from the real evidence itself; and of which a more detailed view will be given in the next succeeding Book.

To the additional joint added to the evidentiary chain by the presence of this fifth link, the following circumstances present themselves as applying in the character of infirmative possibilities:—

1. Possible untrustworthiness (whether in respect of moral or intellectual qualifications) on the part of the reporting witness; viz. the supposed precipient witness, speaking in the character of a deposing witness.

2. Impropriety of the shape in which his testimony was received or extracted.

If to the deciding judge this testimony be presented not in the oral but ready-written form,—3. Inaptitude, whether in respect of moral or intellectual qualifications, on the part of the receiving or extracting judge.

CHAPTER X.: OF CLANDESTINITY, CONSIDERED AS AFFORDING EVIDENCE OF DELINQUENCY.

Under this class of criminative circumstantial evidence, may be noted the following distinctions, viz.:—

1. Clandestinity, by concealment of the forbidden act or principal fact itself: for example, by doing in the dark what, but for the criminal design in question, would naturally have been done in the day; or choosing a spot which is supposed to be out of the view of everybody, for doing that which, but for the criminal design, would naturally have been done in a place open to observation.

2. Clandestinity by concealment of the person of the supposed delinquent while occupied in the act: as in the case of disguise.

3. Clandestinity by concealment of the part taken by the supposed delinquent in the commission of the act—in the production of the mischievous result: concealment, for example, of the purpose for which the act, viz. the physical act, is performed; as, in the case of murder by poison, the several acts by which the poison is prepared, or put into the hands of, or recommended to be taken by, the person intended to be poisoned.

4. Clandestinity, by eloignment or deception of witnesses to the act: exertions employed for removing this or that person from the scene of the intended unlawful action; under the supposed apprehension of his becoming (in relation to the forbidden act, its accompaniments, or consequences) a percipient, and thence eventually a deposing witness.

5. Clandestinity, by eloignment or concealment or destruction of criminative real evidence. Concerning the modifications of real evidence, see above Ch. III.

6. Forgery in relation to real evidence; viz. either by fabrication of exculpative appearances, or by alteration of inculpative into neutral or exculpative. The modifications of which it is susceptible correspond of course with those of real evidence.

Disguise of the person—a mode of clandestinity already brought to view—may be considered as a modification of forgery in relation to real evidence.

On the preceding occasion,* forgery in relation to real evidence was considered as capable of being practised by others, to the prejudice of the supposed delinquent: here, it is considered as practised by him. There, it was an infirmative, an exculpative probability: here, it is an inculpative fact.

Being a mode of deception, effected or attempted—a species of falsehood,—and, as such (no less than forgery in relation to written evidence) a modification of the crimen falsi of the Roman school—falsehood uttered by deportment,—it is in that respect closely allied to falsehood in the same intention uttered by discourse.

It may be moreover considered as being, in relation to real evidence, that which subornation is to personal. As in the one case, so in the other, objects of the class of things are thus pressed into the service of delinquency.

7. Opposition to search made for real evidence. See the next chapter.

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Clandestinity, in what manner soever aimed at, may be considered as evidentiary of fear: and in that way, and that way alone (through the chain of inferences of which that emotion constitutes, as above, the principal link,) constituting a circumstantial evidence of delinquency in this or that shape, as explained by the occasion, as above.

In the case of fear, as above explained, the emotion itself, the psychological (and that a pathological) fact, constitutes but the second link in the evidentiary chain: the first link was constituted by the physical symptoms from which that psychological fact is inferred. In the case of clandestinity, under the several modifications as above enumerated, the positive voluntary physical acts by which the concealment is effected or endeavoured at, stand in the place of the involuntary appearances, the pathological symptoms, by which, in the other case, the emotion is betrayed.

1. Intention or design, differently, but equally, or more, culpable; 2. Intention or design less culpable; 3. Intention or design blameless, though requiring secrecy.* These are among the infirmative counter-probabilities which have just been seen, in the case of fear, applying to and weakening the probative and criminative force of that emotion: they may here be seen applying with equal force to the criminative force of clandestinity, in these its several shapes.

To the probative force of the inference, which, in the case of fear, binds together the two first links (viz. the aggregate of the physical or pathological symptoms, and the psychological emotion,) two infirmative counter-probabilities were seen applying themselves; viz. 1. The emotion different (for example, grief, or anger;) and 2. The cause of the physical symptoms, not psychological, but purely physical, viz. bodily indisposition.

In the case of clandestinity, in the place of those infirmative counter-probabilities stands another, characterizable by the word sport: the clandestinity having for its object and its cause, desire of producing sport, merriment, pastime; and not delinquency in any shape.†

At the end of a judicial investigation, it does not often happen that, in a case of clandestinity, the decision, as between sport and criminality, can be attended with much difficulty. But, for want of timely explanation, sport indiscreetly pursued has every now and then been itself an object of pursuit, when thus enveloped in the livery of guilt. A man who endeavours to pass for a ghost, risks the being taken for a thief, or something worse.‡

Forgery, in relation to real evidence, has an infirmative counter-probability peculiar to itself; viz. self-defence:—the individual innocent, exertions made to remove physical appearances, which (whether produced by nature or by human malice, viz. in the way of forgery) tend to fix a criminative imputation on him, in the circumstances in which he happens to be placed.

In the view of removing the imputation from himself, a murderer has been known secretly to deposit in the apparent possession of an innocent person the blood-stained instrument or garment, or some other such article, so circumstanced as to operate in the character of a source of criminative real evidence.* In this case, were it the lot of the innocent man to be observed in the night time retransferring the articles to the place from whence they came, it is to him, instead of the murderer, that the artifice might thus come to be imputed.†

CHAPTER XI.: OF SUPPRESSION OR FABRICATION OF EVIDENCE, CONSIDERED AS AFFORDING EVIDENCE OF DELINQUFNCY.

Supposing the whole mass of evidence actually suppressed, no such discussion (it is evident) can have place, as the inquiry concerning the probative force belonging to any part of it, or the circumstances, by the consideration Edition: current; Page: [49] of which, that force may be diminished.

But, under the head of these several modifications of criminative circumstantial evidence considered as deducible from active deportment, the attempt, successful or unsuccessful, is to be understood: for it is by the attempt, successful or unsuccessful, that the state of the mind is indicated; and it is from the state of the mind, that the criminative inference is (not less properly than naturally) deduced.

Preventing as it were the birth of evidence, by preventing from becoming witnesses (i. e. percipient witnesses) those by whom that character might otherwise have been acquired, is a criminative circumstance already brought to view, viz. under the head of clandestinity. The circumstances in view under the present head, are such as are capable of taking place at a more advanced stage of the business, viz. at any point within the length of time intervening between the moment in which the offence is considered as having been committed, and the moment at which the evidence produced in consequence of prosecution comes to be delivered. The mal-practice here in question is, therefore, any act whereby a person who, in relation to any criminative fact in question, has already been in the condition of a percipient witness, is prevented, or is endeavoured to be prevented, from appearing in the character of a deposing witness. But to draw, for the separation of the two objects, a clear line of distinction applicable to all cases, would be found impossible.

Under one or other of the two general heads here mentioned, the following specific modifications of circumstantial criminative evidence seem comprisable:—

1. Destruction, concealment, eloignment,* or falsification of any already existing source of real or written evidence, tending or supposed to tend to the inculpation of the supposed delinquent.

2. Interception of evidence, oral, real, or written. Measures taken to prevent the forthcomingness or delivery of the evidence of a person whose testimony, in the character of a deposing witness, would tend, as supposed, to the inculpation of the supposed delinquent; or the evidence deducible from the written document, or other thing capable of operating in the character of a source of written or real evidence: ex. gr. by obstacles thrown in the way of whatever antecedent operations may be necessary to the delivery of it.†

3. Subornation: causing a person to deliver false testimony, tending to the exculpation of the supposed delinquent.

4. Fabricating, or causing to be fabricated, evidence, real or written, tending to the exculpation of the supposed delinquent.—N.B. This is one out of several modifications of forgery in relation to real or written evidence.

As to infirmative counter-probabilities, considered as applicable to the criminative circumstances comprehended in this class,—the generally applicable ones already mentioned may perhaps be found, some of them, to be applicable upon occasion here, though in general with but a slight degree of probative (or rather disprobative) force.

The infirmative counter-probability peculiar to this class may be thus designated: apprehension of similar mal-practice on the other side.

The supposition that, in the character of an infirmative counter-probability opposed to any of the criminative circumstances in question, this consideration can operate with any such degree of disprobative force as to render it worth employing, involves the supposition of no ordinary degree of depravity on the part of the national character at the time.

English law affords a story, which, whether meant for truth or jest, may alike serve for exemplification. Pressed for payment on a forged bond, a man applies to his attorney. Edition: current; Page: [50]Client. “What is to be done?”—Attorney. “Forge a release.” On looking back, one cannot say exactly how far, it might not be impossible to find, even in English history, a period in which a story of this sort might have had a foundation in truth.

In some countries there have been said to exist a sort of houses of call, or register offices, for a sort of witnesses of all work, as in London for domestic servants and workmen in different lines, and in some parts of Italy for assassins.

Ireland, whether in jest or in earnest, was at one time noted for breeding a class of witnesses, known for trading ones by a symbol of their trade, straws sticking out of their shoes.

Under the Turkish government, it seems generally understood that the trade of testimony exists upon a footing at least as flourishing as that of any other branch of trade.

CHAPTER XII.: OF AVOIDANCE OF JUSTICIABILITY, CONSIDERED AS AFFORDING EVIDENCE OF DELINQUENCY.

On the part of the supposed delinquent, the acts or modes of conduct immediately directed to the production of this effect may be this enumerated:—

1. Expatriation: migration into the dominion of some foreign state; viz. of some foreign state in which, at the instance of the judicatory in question, justiciability on the part of the supposed delinquent will not (it is supposed) in the case in question be enforced.

2. Exprovinciation: migration into another juridical district within the dominion of the same state; viz. in so far as such change of place is regarded as being, definitively or for a time, productive of the like effect.*

3. Latency: the supposed delinquent being so circumstanced as that means whereby he may be found, as well as the spot where he is, are unknown; viz. to him who, in the character of judge, or in that of prosecutor, is desirous of causing his person to be forthcoming, for the purpose of his being justiciable.

4. Latitancy: i. e. where the non-forthcomingness of the supposed delinquent is clearly understood to have the avoidance of justiciability for its cause.

5. Eloignment of property: i. e. by expatriation, exprovinciation, transfer into other hands, or concealment.

6. Tampering with any person, on whom, in whatever character, ex. gr. in that of minister of justice, permanent or occasional, Edition: current; Page: [51] superordinate or subordinate (prosecutor, in the case of an offence considered as being of a public nature, included,) his justiciability may depend.*

The several special inculpative circumstances comprised under this more general head being all of them indicative of fear—fear having its source and object in the power of the law,—the infirmative counter-probabilities applying to this case are pro tanto the same as those which apply to that.

In the case of the four that consist in so many expedients employed or supposed for the avoidance of personal forthcomingness, the infirmative consideration already above designated by the phrase contemplation of juridical vexation notwithstanding innocence, operates with peculiar force.

A circumstance that demands attention, with an immediate view to practice, is, that this force will of course undergo variation, according to the nature of the system of procedure—according to the mode and the degree in which it is subservient or adverse to the several ends of justice.

The exculpative force of this infirmative counter-probability will be the greater—in other words, the probative force of the criminative circumstance constituted by avoidance of justiciability by eloignment or concealment of person will be the less—the greater (for example) the vexatiousness or the length of the imprisonment to which, by accusation or suspicion of the offence in question, a man stands exposed: understand provisional imprisonment (in technical language imprisonment on mesne process,) so circumstanced that the innocent as well as the guilty stand exposed to it†.

Other differences might be cited, by which the determination, whether to abide or not to abide the course of penal procedure, could not but be more or less affected: the severity of punishment, and the severity of the process Edition: current; Page: [52] employed for the extraction of evidence. In France, while breaking on the wheel and other excruciating modes of capital punishment were in use, the hazard attending such abidance could not but present itself as considerably greater, and consequently the inference from flight to delinquency considerably less cogent, than at present, when simple death is the highest degree in the scale: and another, and perhaps still greater, difference, could not but be attached to the useless barbarity of preparatory torture.*

Health—business—pleasure,—by any one of these objects of pursuit may a man be engaged in a plan of expatriation, exprovinciation, or eloignment of property: by pursuit of pleasure, possibly even by pursuit of business, he may be engaged in a plan of latency: here there are so many infirmative counter-probabilities operating in diminution of the probative force of the four circumstances in question, in the character of evidences of fear of the hand of law, and thence as evidences of delinquency.

In a word, under one or other of these three modifications the ordinary pursuits of mankind in general being comprehended, the consequence in regard to the circumstances in question is, that, considered in themselves, and independently of every other circumstance of a criminative tendency, they can scarcely be considered, even putting all of them together, as operating with any perceptible degree of criminative force.

The presumption afforded of delinquency by any one of these changes will be the stronger, the greater the deviation it makes from the course of life habitually pursued by the supposed delinquent.

In the case of a mariner, a carrier, an itinerant vender, or an itinerant handicraft, it may amount to nothing: in other words, the disprobative force of the infirmative counter-probability denoted by the expression pursuit of business, may be so great as to reduce to nothing the probative force of the criminative circumstance or circumstances in question,—viz. expatriation, exprovinciation, eloignment of property, or latency,—any one or more of them.

In case of real delinquency,—expatriation, exprovinciation, or eloignment of property, one or more of them, are apt to be accompanied with the circumstance of clandestinity; and (for the purpose of clandestinity) with mendacious extra-judicial discourse, having for its object the preventing or removing, on the part of any persons on whose part inculpative testimony is apprehended, all suspicion of the true cause.

That, by the concurrence of any such other criminative circumstances, the criminative force of the circumstances here in question cannot but receive considerable increase, is altogether obvious.

But it does not follow that, by the mere non-appearance of these confirmative circumstances, the criminative force of the circumstances here in question must be altogether destroyed; since it may happen, that—the change of place in question having been already determined upon, in pursuit of business, health, or pleasure—advantage may have been taken of the means thus afforded for the avoidance of justiciability, and, under favour of the promise of impunity thus entertained, the crime in question may have been committed.

As to tampering with prosecutors and other ministers of justice; to an act of this description, considered in the light of a criminative circumstance, the same suppositions apply in the character of infirmative counter-probabilities, as have been seen applying in the case where the persons thus practised upon are considered in the character of witnesses.

Expatriation, exprovinciation, and eloignment of property, involve in each instance the necessary supposition of intentional agency, positive or negative, but in general positive, on the part of the supposed delinquent himself. In latency, on the other hand, no such supposition is necessarily involved: what it designates is the effect—not any act by or by the help of which the effect is produced.

Latency—though it does not necessarily import, on the part of the supposed delinquent, any act done by him in the view of producing the effects designated by it—is, in respect of its criminative force, subject to the operation of the same counter-probabilities as those which apply to the other criminative circumstances which do, on his part, import action: since, like any of them, it may be the result of a man’s ordinary and blameless pursuits.

By the word latency, nothing more can be designated than the state of him in whose instance no means of communicating with him, either through the medium of his place of abode or otherwise, is known to those to whom such knowledge is necessary to enable them to insure his forthcomingness for the purpose of justiciability.

But in whose conduct is the cause of this want of knowledge to be found?

Till this point be settled, the condition denoted by the word latency can scarcely, with Edition: current; Page: [53] propriety, be placed upon the list of criminative circumstances.

The means of communicating with an individual (i. e. the means the best adapted to that purpose) can scarcely be brought under any general description: they will in every case be dependent on the individual circumstances in which, at the individual point of time, he happens to be placed. But it does not often happen that the means are deficient, or prove ineffectual, when, to the real desire, the power is added,—such power as it depends on the law to give.*

If it be really my wish to communicate with a man, to hear from him, and make him hear from me, what course do I take? The answer is almost too obvious to be called for: I make inquiry among his friends. Such is the course which everybody takes whose wish it is to succeed; and such is the course which it has been the care of English judges not to take.

Supposing powers adequate to the purpose given by the law, those powers accompanied with the correspondent obligations, and those obligations duly fulfilled; then it is, and not till then, that latency becomes presumptive evidence of latitancy, and through that of criminality: latitancy being understood to designate voluntary latency, having for its object the avoiding forthcomingness, for the purpose of avoiding justiciability.

Supposing the fact of latency established, and the fact of latitancy justly inferred from it; still, under the existing institutions, there exists a counter-probability by which its probative force in the character of a criminative circumstance is weakened. Fear, and fear of the law, would indeed be indicated; but the real evil apprehended at the hands of law might be, not the evil of punishment, inflicted under that name, on the score of criminality in any shape, but the evil of imprisonment, on the score of satisfaction for money due on an account not penal.

In so far as non-discharge of pecuniary debts, or other non-penal obligations, is considered as an offence, and non-surrender of a man’s person to imprisonment in satisfaction for the wrong done by the non-fulfilment of those obligations, is considered as an ulterior offence grounded on the former,—the engaging in a course of latitancy for the purpose of voiding such imprisonment may be considered as constituting the matter of the infirmative supposition above indicated under the title of design less culpable.

Suppose a prosecution actually commenced, and notice of its being so actually received by the supposed delinquent: on this supposition latency is actually converted into latitancy.

Notoriety of the obnoxious event, coupled with notoriety of popular suspicion fixing upon the supposed delinquent as having been concerned in the production of it;—these circumstances together will operate, of course, in the character of evidentiary facts, affording presumptive evidence of the information’s having reached his ears.

By habitual occupation, or by accident, he was in an itinerant state. He is illiterate, and the advertisements, if any have issued from the press, have not reached his eyes. The country is of the number of those which are not yet far enough advanced in the arts of life to render communications in that mode customary or easy. These may serve as examples of a variety of circumstances by which the probative force of simple latency, as evidentiary of latitancy, may be more or less impaired.

CHAPTER XIII.: OF THE SITUATION OF THE SUPPOSED DELINQUENT IN RESPECT OF MOTIVES, MEANS, DISPOSITION, CHARACTER, AND STATION IN LIFE, CONSIDERED AS AFFORDING EVIDENCE OF DELINQUENCY.

§ 1.: Of the situation of the supposed delinquent in respect of motives and means, considered as probabilizing or disprobabilizing delinquency.

Between these several objects the connexion is so intimate, that they can scarcely be spoken of, any of them, without reference to the rest. But, with regard to delinquency, the indications they will be seen to afford, are, with reference to one another (though all material) very various, and even discordant; being not uniformly inculpative, but in some respects exculpative—in others directly inculpative,—in others again inculpative, but not so much directly as indirectly, by serving to weaken the force of an exculpative circumstance: and, as such, not admitting any infirmative supposition.

The psychological object designated by the Edition: current; Page: [54] word motive, is, as it were, the basis of all the rest.

The existence of a motive, by which the supposed delinquent might have been led (it is supposed) to the commission of the offence in question, is a fact which, in criminal cases more especially, is very frequently made the subject of proof. Is there any use in doing so? In certain cases, no: and in those, I believe, it never is done: in other cases, yes: and in these, I believe, at the suggestion of common sense, it commonly is done. In what cases, and in what sense of the word motive, it is worth while and practicable to have recourse to evidence or argument for this purpose, seems very generally understood in practice.

Motive is a term applied to the indiscriminate designation of divers objects, which require to be distinguished.

It is applied to designate any desire, when considered as the cause of action: call this the interior or internal motive.

It is applied to designate any corporeal thing, or mass of things, considered as the object of any such desire: call the object by which such desire is considered as excited, or capable of being excited, the exterior or external motive.

Thus, when a hungry man knocks down a baker, for the purpose of stealing a loaf of bread,—hunger is the internal motive of this criminal act, a loaf of bread the external.

A mischievous event being supposed to have been produced, and Titius suspected of having been concerned in the production of it,—What could have been his motive? says a question, the pertinency of which will never be matter of dispute.

The following seem to be the circumstances to which it owes its pertinence:—

Every act which, in the force of any one or more of the tutelary sanctions, finds a source of restraint—every penal, every disreputable, in a religious community every irreligious, act—is on that account rendered more or less improbable, by the consideration of the penal or other evil consequences attached to it. Unless this restrictive force finds an impulsive force, and that stronger than itself, in opposition to it, the culpable act is not merely improbable, but, psychologically speaking,*impossible.

To ask, What, in this case, could have been the motive? is to ask, not what could have been the interior, but what could have been the exterior motive, and that adequate in point of force to the production of such an effect. Not the interior motive; because, without any exception worth noting to the present purpose, all sorts of desires are common to all human beings: but what could have been the exterior motive? In the situation in which the supposed delinquent appears to have been placed, where is the object to be found, which could excite a desire strong enough to give birth (notwithstanding the opposition made by the combined force of the several tutelary sanctions) to an offence of the nature of that which he is suspected of?

To go about to prove on the part of the supposed delinquent the existence of a desire, a feeling, a passion, which presents itself as capable of accounting for the commission of the crime, would be an enterprise frequently impracticable, and always useless. No crime that has not some species of desire for its cause; and, with an exception or two not worth dwelling upon, no human bosom that is not the seat, constantly or occasionally, of every modification of desire.

It is not the mere existence of the desire—the propensity or the relish for this or that source of pleasure, the aversion for this or that source of pain. If it were,—by the same rule that the supposed delinquent is guilty, so is every other human creature. It is the existence of some exterior object, of a nature to call into action this or that desire or propensity, and to infuse into it a degree of force capable of surmounting the joint force of those tutelary motives, by the influence of which men in general are restrained from giving the reins to criminal desire.

Under the denomination of the motive must be comprised, for the present purpose, not only the internal desire, but the contemplation of the exterior event, or state of things, which the desire looks to for its gratification—looks to as the cause which will bring within a man’s reach the good (whatever it be) which is the object of the desire. The existence of the motive in the former sense, is the psychological fact—in the latter, the physical fact. It is in the latter sense, and that alone, that the existence of a motive either requires proof, or is susceptible of it. In this case, the internal motive to the act—the criminal act—is the expectation that the good in question will be brought into a man’s possession by such criminal act. The existence of Titius is sufficient proof of Titius’s being acted upon, and that during the whole course of his life, by the love, the desire, of the matter of wealth. The man who, desiring to live, has no desire for the matter of wealth, exists only in the fancy, or rather in the language, of shallow declaimers: to desire to live, is to desire to eat; and to desire to eat, is to desire to possess things eatable.

What, then, is the matter of fact proved, under the name of the existence of a motive? It is either the actual excitation of this or that desire by this or that assignable cause; or else the existence of this or that object, Edition: current; Page: [55] in a state in which it will naturally, in the breast of the party in question, have had the effect of exciting this or that desire. Man in general is susceptible of enmity—the desire of witnessing pain on the part of the individual who is the object of it. Man in general is susceptible of sexual desire. No human bosom that does not harbour within itself the love, the desire, of the matter of wealth. Thus much is what everybody is sufficiently persuaded of: thus much is what nobody ever thinks of proving. But Clodius had become the object of enmity to Milo: in the bosom of Tarquinius the appetite of sexual desire had attached itself upon the idea of Lucretia with particular force: upon the death of Amerinus, property to a considerable amount was secured to Hæres; of that state of things Hæres could not be unconscious, and had been heard to speak of it with impatience. These are facts which admit of proof, and may well appear to call for it. But, in the case of the happening of the correspondent obnoxious event in question, and a suspicion pointing to Milo, Tarquinius, or Hæres, respectively, as the criminal author of that event,—to prove the existence of these respective facts, is to prove, on the part of these persons respectively, the existence of the appropriate motive.

Thus it is that the consideration of any object pointed to as capable of having operated, in the case in question, with an adequate degree of seductive force, acts in relation to the supposed offence, not so much in the character of a directly probabilizing consideration, as in that of a consideration tending to repel the force of improbability (psychological improbability) acting in the character and direction of a disprobabilizing circumstance. On no occasion (says the defendant) does man ever act without a motive. Admitted (replies the prosecutor:) but here, then, was your motive: such or such may have been the desire excited in your breast: thus or thus was it, or might it have been, gratified by the event, of which, from all the evidence taken together, your act, your criminal act, is concluded to have been the cause. Against this disprobabilizing circumstance—psychological improbability,—the existence of a motive, if proved, may have considerable weight: it may even destroy the force of the disprobabilizing circumstance altogether. Considered in itself, the criminative force of the circumstance consisting in the motive (consisting in this, viz. that the situation in which the supposed delinquent is, is such as subjects him to the action of the motive in question,) amounts to nothing. In the natural course of things, where there is any property, every child has something to gain by the death of a parent. But, upon the death of a father, no one is ever led by any such consideration to look to an act of parricide, in the first instance, as the most probable cause of the death.

Not being properly a criminative circumstance, no counter-probabilities seem applicable to it in the character of infirmative considerations.

The following cases may serve as instances where, in the way above explained, the motive (viz. the exterior motive) became, and with propriety, an object of consideration, in the character of a criminative circumstance.

Anno 1781.—Donnellan’s case at Warwick assizes. Offence, murder of his wife’s brother. Motive, prospect of succession to his property.

Anno 1803.—Robert Wilson’s case at Edinburgh. Offence, murder of his wife. Motive, paving the way to a more agreeable connexion with another woman.

Anno 1753.—Mary Blandy’s case at the Oxford assizes. Offence, the murder of her father by a long course of poison. The property of the father was considerable: she was an only child; it would fall to her of course. But, where parricide is the offence, is it in the nature of money to constitute a seducing motive? At that rate, parricide, instead of being as rare as it is horrible, would be among the most frequent of offences. She was enamoured of the wretched Cranston, her seducer, and the existence of the fondest of parents presented itself as an obstacle to an union, which, had she known all, she would have known could not be legalized. What the force of steam is in the physical world, the force of love is in the psychological—capable, when under pressure, of opposing the strongest force. The existence of such pressure is among the most common of all family incidents; the attempt to surmount it by such flagitious means, happily among the most rare. But to bring this motive to view required no separate evidence. The same evidence which showed from what source she had received the poison, showed by what motive she had been led to administer it.

Theophrastus is accused of theft. Fortune, opulent; reputation, unspotted; disposition, generous. The object of small value. Delinquency assumed; what could have been his motive? It was a black-letter book; a cockleshell; a butterfly. Theophrastus was a collector.

Means—i. e. means of producing the mischievous effect in question—seem to come under consideration to much the same purpose as motives. The belief of the existence of whatever means are regarded as necessary to the production of the effect in question, being a condition precedent to the endeavour,—means may in this case be considered Edition: current; Page: [56] as coming under the denomination of motives: power being as necessary an article as desire, in the assemblage of productive causes.

By opportunity seems to be understood an assemblage of such articles, in the composition of the aggregate mass of means, as possess not a permanent, but only a transient existence.

§ 2.: Of the situation of the supposed delinquent in respect of disposition and character, considered as probabilizing or disprobabilizing delinquency.

Disposition is produced by motives.

A man is said to be of such or such a disposition, according as it is to the influence of the motives that belong to this or that class that he is considered as being more or less in subjection: reference being made to the degree of influence supposed to be exercised by these same motives over the minds of the generality of the class of persons with whose conduct his conduct is compared. If the motives of the self-regarding class are considered as predominant, a selfish disposition is ascribed to him: if motives of the social class, a disposition of the social or benevolent cast: if of the dissocial kind, a disposition of the dissocial or malevolent cast.*

The effect of disposition, supposing it in proof, may be either inculpative or exculpative. So far as it is of the virtuous cast, and thence the tendency of its operation exculpative, important as the consideration is, it belongs not to this place. The effect and use of it is, to be opposed to inculpative evidence of all sorts, and, on the ground of a modification of improbability (viz. psychological improbability,) to tend to discredit direct and positive evidence; or, in the character of an infirmative consideration, to diminish the probative force of the inferences drawn from the circumstantial part of the evidence.

So far as the disposition indicated is of the vicious cast, exhibiting a more than ordinary degree of force on the part either of the self-regarding or dissocial motives,—it will generally, though not uniformly, afford inferences tending to probabilize the delinquency of the supposed delinquent, in respect of the offence in question, whatever it may be. In general, however, it admits not of proof on purpose. To take disposition for the subject of express inquiry, would be to try one cause, or perhaps a swarm of causes, under the name and on the occasion of another.

But, not unfrequently, indication of disposition, depravity of disposition, comes in of course, along with other and more directly apposite evidence; and when it does, it is naturally impressive; and, if sufficiently proved, it is scarcely to be wished that it should be otherwise than impressive.

As to infirmative suppositions, they are, here also, plainly out of the question: reasons the same as above.

Character is sometimes used as synonymous to disposition itself; but, more commonly, for the opinion supposed to be entertained concerning the disposition of the individual in question, by such persons as have had more or less opportunity of becoming acquainted with the indications given of it.†

Character is accordingly, on occasions of this sort, the word almost exclusively in use: disposition very seldom: the distinction is scarcely an object of notice.

For the consideration of character (so far as there is any difference) there is evidently still less room, in general, than for that of disposition, for the purpose of probabilizing the act of delinquency in question, on the part of the supposed delinquent.

Cases, however, are not altogether wanting, in which not only the question of dispesition, as indicated by this or that article in the general mass of evidence collected for other purposes, but even the question of character, as distinguished from disposition, may, in a criminative view, present a claim to notice.

Offences having ill-will for their motive—having ill-will for their psychological cause,—seem to be those, in respect of which, in a criminative view, the question of character is most apt to be material. In the case of an offence of this description, take the following examples:—

1. Offence, personal injury; the author uncertain: the character of the supposed delinquent, is it such as to point to him rather than to others?

2. Quarrel mutual; the supposed delinquent a party: the transaction more or less involved in obscurity:—considering the adverse party on the one hand, and the supposed delinquent on the other,—which, in respect of his character, seems most likely to have been in the wrong, or likely to have been most in the wrong?

§ 3.: Difficulties attendant on the admission of character evidence.

In an abstract point of view, it appears obvious Edition: current; Page: [57] and indisputable, that, on the question between delinquency and non-delinquency, considerable light may be expected to be thrown by the consideration of previous character. But, when the occasion calls for applying this general notion to practice, difficulties of no small moment will be seen to arise: some of them such as seem scarce capable of receiving solution but in the Gordian style.

1. Character favourable: tendency of the evidence, exculpative: fact indicated, non-delinquency. Bond of connexion between the evidentiary fact and the fact indicated, improbability of the psychological kind: improbability that a man bearing such a character should have soiled it by such an offence: that a man in whose instance the preponderance of the social motives over the dissocial and self-regarding has been so decided and confirmed, should, in the individual instance in question, have given way to the impulse of the seductive motives.

Whether the character be general or special, in this case the danger of prejudice to justice does not present itself as by any means considerable enough to indicate the propriety of excluding the evidence in any case. 1. Circumstantial evidence so loosely connected with the fact in dispute, is not likely to prevail against a mass of appropriate evidence, whether direct or circumstantial, or both together, to an amount sufficient for conviction. 2. In the case of general bad disposition, and its natural consequence, bad character, it will in general not be easy to obtain testimonials of good character from persons possessing a character of sufficient apparent trustworthiness to present a prospect of material probative force.

Nor would it be safe to put an exclusion upon evidence of this nature: inasmuch as, in case of an inculpative conspiracy, or even an untoward combination of circumstances, it may be the only sort of evidence by which it may be in the power of the purest and most exalted probity to defend itself. In all such cases, general character, it being on the favourable side, is pertinent: nor does it lie open to the objection which we shall see applying to it if employed for the purpose of painting character on the unfavourable side.

What seems the only objection, then, in this case, is referable to the head of vexation: vexation to the judge (which is vexation to the public through the medium of the judge,) by the time that may come to have been consumed in the exhibition of a species of evidence of which the probative force is so inconsiderable and inconclusive: vexation again to the judge, by the quantity of his power of attention that may come to have been expended upon a species of evidence comparatively irrelevant—a species of vexation which, when screwed up to a certain height, becomes dangerous even to the direct justice of the cause.

To the species of vexation attaching itself (as above) to the station of the judge, may be to be added in some cases another lot of vexation attaching itself to the station of witness; viz. to the witnesses from whom the testimony in question is to be extracted. On the other hand, vexation, in this instance, supposes unwillingness on the part of the witness, power to compel his testimony notwithstanding, and that power exercised. A witness who is on such an occasion unwilling to depose in a man’s favour, is not likely (it may be said) to be called upon by him for that purpose: hostility rather than sympathy is the affection in such a case to be expected. But it does not follow by any means, that because a man is unwilling to take upon him the loss of time, and perhaps expense, imposed upon him by his coming forward in the capacity of a witness, his reluctance and resentment should rise to such a height as to engage him to give an unfavourable testimony, in contradiction to his own conscience.

2. The case where the party calling for the evidence of character (the defendant’s character) is the demandant—the prosecutor,—the expected tendency of it consequently unfavourable—presents much greater difficulties.

1. Is it conceived in general terms?—no specification of facts, no instances of particular misconduct on any individual occasion specified?—A wide, and at the same time a safe, door is opened to calumny. The calumny is in its nature unpunishable. By the supposition, no particular fact is or can be specified, nothing which, for the purpose either of punishment or compensation, is capable of being disproved. What is delivered is mere matter of opinion; and that an opinion which, by the power of the law itself, a man is compelled to give.

2. Is it conceived in particular terms? particular facts stated?—Still either the door is left open to calumny, or fresh difficulties present themselves. Neither on this nor on any other occasion ought a man’s reputation to be liable to be destroyed or impaired by mere hearsay evidence. If a punishable or otherwise disreputable act is to be charged upon a man, on this occasion as on others, the charge ought to be made good by a satisfactory mass of evidence. On this as on any other occasion, he ought to be heard in his defence, with liberty to contest the charge, and produce exculpative evidence of all sorts, as in other cases. Under the name of giving evidence of character, what then does the operation here in question amount to? It is trying one cause for the purpose of another cause. Say rather, trying an indefinite number of causes; for it is not a single swallow that makes a summer—a single act a habit, a disposition, a sufficient Edition: current; Page: [58] ground for character, and that unfavourable. Causes thus in any number are tried—one cause, at least, is tried—as it were in the belly of another.

Considered in itself, the trial of any or every such incidental cause cannot, with any consistency, he regarded in the light of an inconvenience. Either the law is a bad one, and as such ought to be repealed, or obedience to it ought to be enforced. Either the law itself is a grievance, or the non-execution of it (bating the particular cases calling for pardon) is a grievance. Far from regret, it should be matter of satisfaction, that, by so cheap and unexceptionable a method, delinquency is brought to light.

But it is by the decision given in these incidental causes, that the decision to be given in the principal cause is to be influenced. On this supposition, perhaps the progress, at any rate the conclusion, of the principal cause, is kept back till after the conclusion of each such incidental cause.

Such are the difficulties, in the case where the imputation clothes itself in specific forms. Where, as above, it confines itself to generals, the difficulty, the ulterior difficulty, that remains to be brought to view, is different, but not less. Those persons on whose opinion or pretended opinion, without any check upon their mendacity, the fate of the defendant is more or less to depend, who are they? What sort of a character is theirs? Character in this case—the case of a witness, a mere witness—presents (it must be allowed,) or at least ought to present a different idea in this instance from what it did in the other, in that of the defendant. In the instance of the defendant,—the character, the disposition in question (it is, by the supposition, of the unfavourable cast,) admits of any modification, according to the nature of the imputed offence: in the case of the witness, it is confined to mendacity; or, if it extend to any other vicious propensity, it is only in so far as a propensity to mendacity may be inferred from it.

But if the character of any one witness ought to be suffered to be put in issue, so, by the same reason, ought that of every other. This being admitted, you put it in the power of the party—of that one of the parties whose interest it is to defeat law and justice—to bring upon the carpet a chain of character evidence without end;—an arithmetical repetend, or, by accident, even an arithmetical circulate.

§ 4.: Rules tending to the solution of the above difficulties.

In judicature, in legislation, difficulties (how great soever) should never be dissembled. From falsehood, from concealment, from imposture in any shape, justice never profits, never can fail of suffering, upon the whole.

The complete removal of the eventual inconveniences and correspondent difficulties being hopeless, all that remains is to present such considerations and expedients as appear calculated to reduce the embarrassment to its minimum.

On the one hand, to compel the admission of this sort of evidence in all cases, on both sides, and of both aspects, favourable and unfavourable—on the other hand, to compel the refusal of it in any case by an unbending rule,—are two extremes, both of which, though not in equal degree, threaten to be prejudicial to the interests of justice. It seems to be one of those cases in which a considerable latitude ought to be given to the discretion of the judge. To abuse it, will not, indeed, be out of his power; but neither is the danger of abuse so great, but that, if he is not fit to be trusted with this power, neither is he fit to be trusted with the other powers attached to his office.

If there were a case in which it would be proper to render the admission of evidence of this species compulsory, it would be the case where, the character in question being that of the defendant, the evidence is called for at his instance, and the punishment attached to the offence is loss of life. Why? Because, in case of an improper refusal, punishment undue, and at the same time irreparable, may be the consequence. But what is the measure indicated by this consideration? Not the making the admission of this species compulsory, even in this case, but the forbearing to employ a mode of punishment, which in this, as well as every other point of view, is adverse to the interests of justice—favourable to them in none.

The case in which the sort of circumstantial evidence afforded by moral character is of greatest importance, is that in which, the station of the party and the witness being combined in one, the cause affords no other evidence on that side.

The demand for this species of evidence is of course doubled, in the case where the same combination of stations takes place on both sides, and on each side is accompanied with the same absence of all other and less suspicious evidence.

In cases not penal, it will constitute a natural safeguard against perjury on the part of a plaintiff deposing in support of his own demand; supposing an habitual course of perjury to be capable of being otherwise engaged in as a source of livelihood. The taint which a few steps in this career would have the effect of imprinting on a man’s reputation, would not fail to oppose a powerful obstacle to his persevering in it with any adequate prospect of success.

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The following seem to be the considerations by which the admission or rejection of this species of evidence ought to be determined:

1. The importance of the cause to the demandant’s side, in respect of the mischief of impunity.

2. The importance of the cause to the defendant’s side, in respect of the mischief of undue punishment.

3. The importance of the matter in dispute to each party respectively, in the case of a non-penal cause.

4. The delay threatened by the production of the evidence applied for.

5. The vexation apprehended to third persons, from the production (supposing it compulsory) of the evidence applied for.

6. The doubtfulness of the case, as it stands on the ground of the other more appropriate evidence.

The following rules and observations seem calculated to aid the judge in determining on the admission or rejection of this species of evidence:—

1. No evidence of character, good or bad—no speaking to character, favourably or unfavourably (i. e. at the instance either of the defendant or the demandant)—ought to be admitted, without power to the judge (if he thinks fit) to allow of time for inquiry into the character of the character-givers themselves. Why? For the same reason as in case of alibi evidence.* But the force of the reasons in this case are much less conclusive, the evidence of badness of character being in its nature so much less precise and satisfactory than the evidence of the existence or non-existence of such or such a person, at such or such a time, in such or such a place.

2. Evidence of bad character in crimination of the defendant, ought not to be admitted, unless in so far as it results from evidence admissible on other grounds; or unless, the fact of the offence being clear, the question is, between two persons suspected, which of them was the author? And even in these cases (that the quantity of vexation and delay may not be altogether boundless,) power should be left to the judge to limit the quantity or quality of the evidence, the number and choice of the witnesses, in declared consideration of the apprehended magnitude of these respective inconveniences.

3. If, at the instance of the defendant, evidence in favour of his character is admitted; so, at the instance of the other side, should counter-evidence operating in disfavour of his character be admitted, and time accordingly be allowed for it.†

4. Supposing the extraction of self-criminative evidence from the mouth of the defendant admitted, examination to this point will be as unexceptionable as to any other; and, so far as it extends, the vexation will be kept from reaching third persons; and the additional delay will be less, in the case of evidence extracted from this source, than of evidence extracted from any other.

5. Two considerations operate in diminution of the inconvenience from character-evidence at the instance, and consequently in favour, of a defendant. If the characters of his witnesses are obscure and unknown, the danger of their obtaining undue credence is but little; if suspected, still less:—if known, so as to present a claim to confidence, the inference thence deduced, though not good as to past innocence in respect of the individual offence charged, may be good in respect of the probability of future reformation, in consequence of the impression made by the trial and its attendant terrors.

6. But if, in consideration rather of the prospect of reformation than of the probability of innocence, acquittal be grounded on evidence of preceding good character, as above,—it ought not to extend beyond the amount of punishment under the name of punishment: it ought not to preclude the party injured from satisfaction at the expense of the defendant, if the force of the evidence, upon the whole, would be sufficient to entitle him to a decision in his favour, supposing the case a purely non-penal case.

7. If the appropriate evidence in the cause leans in favour of the defendant, the demand for this inappropriate evidence has no place.

8. Supposing a professional judge or judges, with a jury of occasional judges,—power might be given to the judge to suspend the admission of this character-evidence, so as not to admit it but in case of conviction, or indecision, on the ground of the appropriate evidence. Suppose a professional judge or judges, acting without a jury,—the demand for the conditional decision, as above, has no place. He simply suspends his definitive decision till the evidence of character has been got in.

Character-evidence has this in common with alibi evidence, that it is with the utmost facility and clearness distinguishable from every other species of evidence. What passes in relation to it is therefore, with proportionable facility, susceptible of registration:

1. Whose character it is—the demandant’s or the defendant’s.

2. At whose instance called for—that of the demandant, the defendant, or the judge.

3. When called for by demandant or defendant—whether ordered accordingly, or refused, by the judge.

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4. If refused, on what ground:—whether delay, and to whose prejudice—that of demandant or defendant; or vexation, and to whom—whether, 1. to the court and the public in respect of time consumed, or 2. to the witness or witnesses, or 3. to the party repugnant, in respect of the expense.

5. If exhibited, whether prevalent or inoperative; i. e. whether the decision was in favour of that side or of the opposite.

6. Length of time consumed by the evidence of this description, in court, by the exhibition of it,—out of court, in waiting for it: ratio of this length of time to that of the length of time consumed in like manner upon the other evidence, the appropriate evidence in the cause.

7. Names, description, and number of the witnesses of whose testimony this evidence was composed: ratio of this number to that of the whole number of the witnesses whose testimony was exhibited in the course of the cause.

Such is the information by which the advantages and disadvantages attending the employment of this species of evidence would be placed in a distinct and satisfactory point of view. In this place, the statement of the heads occupies space; but, in each cause, the space as well as time consumed by the entry of the matters coming under these heads would be trifling indeed in comparison with the use.

Hitherto, the question regarding the admissibility of character-evidence has been considered only so far as regards the character of the defendant. But there still remains another question:—how far shall it be allowable to produce evidence for or against the character of a witness?

In this case, an imputation conveyed in general terms may, on certain conditions, without any preponderant inconvenience, be admitted. What then are these conditions?

1. In the first place, the imputation, if general, should be confined to that part of a man’s character which respects veracity. The witness, among his acquaintance, is regarded as an habitual liar. A habit of this sort may be ascribed to a man without specific proof: Why? Because a habit of this sort may be the result of a multitude of acts, none of them, perhaps, punishable in course of law, and too numerous to be proved.

2. But in this case it should be allowable for the party by whom the witness is produced, to call upon the impugning witness (viz. upon his cross-examination) to declare, if it be in his power, the particular instances in which this alleged disposition to mendacity became apparent.

3. In the next place, an imputation of this sort ought not to be admitted, unless it has been previously ascertained that there are three witnesses, or two at least, to maintain it. The considerations that suggest this limitation are as follows:—

Of evidence of this sort, if false, the falsity is not, in its nature, capable of being proved for the purpose of punishment. In case of that sort and degree of improbity on the part of the party in question, which prompts to subornation, this is of that sort of false evidence which is procurable with least risk, and therefore with least difficulty.

If an imputation of this sort has really attached upon a man’s character, it can scarce happen but that more witnesses than one may be found to speak to it. There seems, therefore, little danger that the condition in question, if annexed, should operate in exclusion of this species of evidence.

The objection above mentioned as presenting itself on the ground of facility of subornation, will thus be proportionably reduced in force. It is not only twice as difficult—indeed (as on close examination it would appear) more than twice as difficult—to suborn two false witnesses, as one; but, in case of their being procured, the chance of detecting the falsehood is much increased, in respect of the probability of disagreement and mutual treachery, as between individuals thus linked together by community in guilt.

Supposing the general habit of mendacity (viz. extrajudicial mendacity) ever so clearly established, the judge should not regard the inference from such general mendacity to mendacity in the individual case in question (viz. a judicial case,) as being by any means conclusive. On the ordinary occasions of life, a man has no such cogent motives to confine him to the path of truth, no such sanctions to bind him to it, as in this extraordinary one. Without a motive of some sort or other, a man will not encounter any risk; without a motive, and a motive of very considerable force, a man will not subject himself to such serious risks.

So far as specific acts are concerned, there are but two sorts of crime that present themselves as affording any inferences worth regarding in this view. These are—

1. Crimes of mendacity. At the head of these stands actual perjury: underneath, at a considerable distance, stand other crimes of extra-judicial mendacity, such as obtaining valuable things or services by false assertions, which, though made in direct terms, are made without oath: below these again, crimes in which the assertion is indirect and inexplicit, as in case of forgery at large, and those forgeries which have coin or money of any kind for their subject-matter.

2. The other class is composed of such other offences of the predatory cast (such as theft, highway robbery, and housebreaking,) as suppose what may be called a general prostration of character; though here, too, the Edition: current; Page: [61] inference from such an act will be very inconclusive, unless it appear connected with a habit of the same kind. But, in the case of all offences in the description of which mendacity is not involved, the inference will stand lower in the scale of strength by a very determinate and perceptible degree.

As to offences which neither are indicative of any such prostration of character, nor involve any breach of the duty of veracity—in the case of any such offences, the inference may be said to fail altogether. Offences produced by the irascible passions, and offences produced by the sexual appetite, may serve for examples.

In the case of a witness, evidence of good character can scarcely ever be admissible with propriety in the first instance; for no imputation is cast upon a man’s character in this case, as there is in that of the defendant: and, till a ground for a contrary opinion presents itself, the character of the witness, like that of every other man, ought to be presumed a good one. The endeavour to produce evidence of this sort would merely have the effect of producing useless delay, vexation, and expense.

But, in this same case of a witness, if evidence charging him with bad character has been produced on the adverse side, there seems no more reason for excluding evidence of good character in behalf of the same person, than has been seen already in the case of a defendant. On various scores, evidence of good character is liable to much less objection than evidence of bad character. When no evidence of bad character had been adduced, the demand for similar evidence of good character did not exist, but the demand now does exist, the case being reversed.

§ 5.: Of the station of the supposed delinquent, considered as probabilizing or disprobabilizing delinquency.

Station may be considered as indicative of the disposition, and thence of the character, of the class: viz. of the class to which the individual in question belongs: of the class composed of the individuals by whom the station in question is occupied.

To an inculpative purpose, this circumstance can scarcely be considered as having any application. In every political community, the lowest station is that which is occupied by the greatest number of the members.

It is only in the character of an exculpative circumstance, viz. on the ground of improbability—psychological improbability, as above,—that this circumstance is apt to operate with any considerable degree of probative force; and, thus applied, the force (i. e. the disprobative force in respect of the probability of the offence in question on the part of the supposed delinquent in question) with which it operates, is apt to be very considerable.*

The principal application of this species of evidence is that which obtains in a cause (especially a penal cause) where the matter in question is an article of property: more especially in cases where (as in ordinary thefts) the value of it is inconsiderable, in respect of the habitual pecuniary circumstances of the defendant, as indicated by the species of circumstantial evidence in question, viz. his station in life. A man in a station of life thus elevated, is it likely that his necessities should be so urgent as to drive him into a channel of supply at once so scanty and so hazardous?

Compared with moral character, the presumption Edition: current; Page: [62] afforded by this circumstance will, in general, be much more persuasive. Why? Because the matter of fact will, in general, be so much the more notorious, so much the less liable to be misrepresented by the force of bias. The presumptive evidence of habitual opulence afforded by office, visible property, education, habitual expenditure, will, in general, be much more incontestable than any which can be afforded of moral character by general expressions.

Singly (much more if in conjunction,) a certain degree of opulence and rank in life are enough to render scarcely credible on any evidence, a fact for which, in another station in respect of rank and opulence, slight evidence would be sufficient to gain credence. In any of the civilized nations of Europe, what evidence would be sufficient to convict a prince of the blood, or a minister of state, of having picked a man’s pocket of a dirty handkerchief, in a street, or in going into a playhouse?

One particular case there is, in which the force of the presumption derived from this source is not quite so great as, on general considerations, it might appear. This is the case of thefts committed on articles possessing a value of affection; and, in particular, thefts committed by amateurs on fancy articles—rare books, rare pictures, rare plants, shells, minerals, rare anything. A man who might be trusted with safety with a heap of untold gold, might not be capable of resisting the temptation presented by some choice desideratum, which, if to be sold, might be to be purchased for a few shillings.

The warning afforded by this observation is happily of no great use in practice. Thefts of special concupiscence are the offences of the rich: thefts of general concupiscence are the offences of the poor. Thefts of the former description are apt to experience a degree of indulgence, in which the principle of sympathy and antipathy will naturally find much to reprobate, but to which the principle of utility is by no means equally severe. The alarm in this case is extremely narrow: few but amateurs have anything to fear from the thefts of amateurs; and the mischief which the negligence of an amateur has to fear from the concupiscence of another is confined to simple theft: to the more formidable mischiefs of robbery, house-breaking, and murder, the apprehension does not extend. Hence it is that thefts of this description, in the few instances in which they are detected, experience commonly a degree of indulgence such as would not be extended to those which have the plea of necessity, or at least of indigence, for their excuse. Hence too it is that the indulgence extended to them is not productive of any such general mischief to society, as would be the result of the like indulgence, if extended with equal frequency to promiscuous thefts.

In some cases, the question in regard to opulence and rank in life enters into the essence of the cause: the probability and improbability of the main fact in dispute is in a manner governed by them; and in these cases, whether character be or be not expressly held up to view, it is in a manner impossible to it not to act, with more or less force, upon the mind of the judge.

Take the famous case of the Comte de Morangiès, in Linguet’s Plaidoyers. The Count—having occasion to borrow money to the amount of 300,000 livres—with evident, though not unusual imprudence, trusts an obscure female money-broker, and through her means a pretended money-lender, with bills of his, payable to order, to that amount and upwards. Of this large sum no more than 1,200 livres were really delivered. The pretended lender proves the delivery of the whole, by the testimony of three pretended eye-witnesses. The whole cause of the unfortunate man of quality rests upon circumstantial evidence: upon improbability, partly of the physical,* partly of the psychological kind. Station, in respect of rank and opulence, on both sides, but more especially (in respect of opulence) on the part of the pretended lender, became a necessary subject of inquiry. Traced out from the time of the pretended acquisition of this large fortune to the time of the disposition thus pretended to have been made of it, the whole history of her life and conversation concurred in representing the fact of her having possessed it, or anything like it, as scarce credible upon any testimony—absolutely incredible upon the strength of the testimony produced.

These two topics are scarcely susceptible of a separate consideration: no two can be more intimately connected.

In any series of facts (the existence of acts or other events—the existence of works, physical or pyschological, the fruit of such acts or events,) following each other in the character of so many successive means leading to a common end, of so many successive effects originating in a common cause,—the Edition: current; Page: [63] existence of a posterior article will naturally serve as evidence of the existence of each prior article: and è converso, the existence of a prior article will operate, though commonly with much less force, in the character of evidence of the existence of each posterior article.

With a view to cases of a penal nature, these topics have been already handled, under a variety of modifications: handled, not under their own names, but under the names of their respective modifications. Fear (for example,) fear of punishment, being the natural consequence of delinquency, operates as evidence of it. Preparations for a crime, being among the causes of the pernicious event, operate as evidence, serving to fix upon the person who is ascertained to have been engaged in them the authorship of that event.

The sort of facts that remain for consideration on the present occasion, are those that are liable to come in question in cases of a non-penal nature. Examples:—

1. A voyage or journey of considerable length. Evidentiary fact, the arrival of the traveller at the terminus ad quem: facts indicated, his appearance and transactions at the several intermediate stages. E converso; evidentiary facts, his appearance and transactions at any of the intermediate stages, coupled with evidence of his intentions of conveying himself to the terminus ad quem; fact indicated, his arrival there.

2. General settlement of a man’s property, by deed inter vivos, or testament. Evidentiary fact, the execution of the appropriate written instrument: fact indicated, the existence of transactions and scripts (letters, papers of instruction, &c.,) preparatory to that event. E converso; evidentiary fact, the existence of a transaction or script of a nature preparatory to such event: fact indicated, the ultimate event itself.

3. Entrance into a new condition in life: e. g. marriage. Evidentiary fact, the celebration of the marriage ceremony: facts indicated, preparatory transactions and scripts; tete à téte conversations; overtures to parents or guardians; love-letters; bespeaking of the ring and wedding clothes; housekeeping preparations; publication of banns, or obtainment of licence, &c. E converso; evidentiary fact, any one or more of these preparatory incidents: fact evidenced, the performance of the ceremony.

4. Engaging in a profit-seeking occupation: engaging in a partnership. The preparatory steps will be infinitely diversifiable, according to the particular nature of the occupation in each case. To pursue the exemplification further, seems unnecessary.

5. Litigation. Evidentiary fact, the ultimate decision: or, in cases requiring active execution, the extra-judicial transactions designated in each particular instance by that word: facts indicated, the several preparatory transactions and scripts of procedure, according to the nature of the case. E converso; evidentiary fact, the existence of any such preparatory transaction or script: fact evidenced, ultimate decision of the cause, in favour of the demandant or the defendant, according to the particular nature of such cause.

From this general view of the subject, several observations may be deduced—observations, some, if not all, of which, may appear too obvious to be worth mentioning: but there is no observation so obvious as not sometimes to be overlooked:—

1. In every such natural series, facts posterior and prior are naturally evidentiary of each other.

2. The probative force of posterior events in regard to prior ones, is naturally much stronger than that of prior events with regard to posterior ones.

In all human affairs, execution is better evidence of design, than design of execution. Why? Because human designs are so often frustrated.

3. When the posterior event indicated by a prior event did not take place, it will in most instances happen that the failure will have been proved by some notorious or easily-proved facts, by which, in this case, the probative force of the prior event with reference to the posterior will have been entirely destroyed. But sometimes it will happen, especially in the transactions of a remote period, that no completely satisfactory evidence is forthcoming, either of the failure of the design or of the consummation of it. As far as this is the case, the modification of circumstantial evidence, here called for shortness priora posteriorum, may beyond question have its use.

A state of things may be supposed, in which the probative force of this species of evidence might be estimated, or rather observed, with the utmost nicety. This is where, on the one hand, the instances in which the design has proceeded to the stage of consummation—on the other hand the instances in which the execution has stopped short at any of the several preliminary stages, have been made the subject of official or other trustworthy registration.

The case thus put is not absolutely out of the reach of practice. In different degrees it has been exemplified in different countries and different courts in the practice of judicial registration. It might be, and generally speaking ought to be, exemplified in the most perfect degree in the practice of all such courts.

When the ends of justice are taken for the ends of judicature, a system of forensic book-keeping will be employed, by which it will appear in what degree fulfilment is given to Edition: current; Page: [64] those salutary ends. It will be apparent, in each individual cause, at what price, in the shape of expense, vexation, and delay, justice (or what is given for justice) is purchased: and likewise what proportion of that price is the result of natural and unavoidable—what of factitious, and therefore avoidable, causes. In that state of judicial book-keeping, the mode and period of termination will in each cause appear of course.

Under such a system of book-keeping, the termination of each cause being manifested by direct evidence, there will not (it may be said) be any demand for any such circumstantial evidence as is here in view. The facts of all stages being on record, posterior ones as well as prior ones, there will be no use in any such operation as that of inferring the existence of either from that of the other. But, in regard to any given individual cause, suppose the memorials of a posterior transaction or script to be unforthcoming—destroyed, obliterated, lost, or inaccessible. In this case, any prior article of the same series may afford inferences, and have its use.

In another way, a rational system of judicial book-keeping might have a much more extensive use, and still in the character of a source of this modification, of circumstantial evidence. The application given to such a register might not only be prospective but retrospective. The negligence of preceding legislators might in some measure be repaired by the diligence of succeeding ones. Two equal spaces of time are taken—say of ten years each: the posterior, a period of perfect registration, as above; the prior, a period when registration was more or less imperfect, or altogether deficient. In the period of imperfect registration, a certain cause, it is known, proceeded to a certain stage: what is the probability of its having arrived at the ultimate stage? and, in that case, of its having terminated in favour of the demandant rather than of the defendant? Turn to the accounts of the period of good book-keeping, the probability of the two events will be respectively found in numbers.

CHAPTER XV.: ON THE PROBATIVE FORCE OF CIRCUMSTANTIAL EVIDENCE.

§ 1.: What ought to be done, and what avoided, in estimating the probative force of circumstantial evidence?

On this as on every other part of the field of evidence, rules capable of rendering right decisions secure, are what the nature of things denies. To the establishment of rules by which misdecision is rendered more probable than it would otherwise he, the nature of man is prone. To put the legislator and the judge upon their guard against such rashness, is all that the industry of the free inquirer can do in favour of the ends of justice.

Probative force of the evidentiary fact in question, in relation to the principal fact in question,—and closeness of connexion between such evidentiary fact and such principal fact,—are interconvertible expressions.

Probative force, and closeness of connexion as between fact and fact, having no more than an apparent and relative existence (relative, viz. relation being had to him by whom the facts are contemplated in this view;) nothing more can be truly indicated by them than strength of persuasion on his part—strength of persuasion, applied to evidence of the description in question,—viz. to circumstantial evidence.

On each individual occasion, the degree of strength at which the persuasion stands would be capable of being expressed by numbers, in the same way as degrees of probability are expressed by mathematicians, viz. by the ratio of one number to another. But the matter of the case admits not of any such precision as that which would be given by employing different ratios (i. e. different pairs of numbers) as expressive of so many uniform degrees of probative force, belonging one of them to one sort of circumstantial evidence, another to another.*

Of an evidentiary fact of the same description, described in and by any combination whatsoever of general words, the probative force will be found different in different individual cases. It may be in any degree slight; and it may be strong in almost any degree short of conclusive.

The use of infirmative suppositions is to afford a test of conclusiveness, and, in some sort, of probative force.

To judge whether, with relation to a given principal fact, a given evidentiary fact be conclusive or no, look out on all sides for all such infirmative suppositions as can be found.

If, with relation to a given fact proposed in the character of a principal fact, another fact given in the character of an evidentiary fact appear to you as operating in that character—operating in any degree, howsoever slight,—look round to see if no supposition operating upon its probative force in the character of an infirmative supposition be to be found—no fact which in its nature is not impossible, and with which (supposing it, on the occasion in question, realized) the existence of the principal fact in question would be incompatible; or in virtue of which the existence of the principal fact would be seen to be less probable. If any such infirmative Edition: current; Page: [65] supposition be found, the probative force of the evidentiary fact is not so great as to be conclusive.

But if, after your utmost endeavours, you find yourself unable to discern any such infirmative supposition,—then, in your own particular instance (relation had to the state of your own persuasion,) the probative force may be conclusive.

Supposing one evidentiary fact, and only one infirmative supposition applying to it: then, to estimate (i. e. expression numbers) the quantity of probative force remaining to the evidentiary fact,—deduct from the ratio expressive of practical certainty, the ratio expressive of the probability of the fact the existence of which is by the infirmative supposition supposed: the remainder will be the nett probative force.

To one and the same evidentiary fact, suppose a number of different infirmative suppositions applicable; and, of each of the several supposed facts, suppose the probability the same; the sum of their infirmative forces will be as their number.

In an evidentiary chain composed of a number of links, of which the first is a fact proved by direct evidence, the last the principal fact in question, and between them one supposed fact at least, of which the fact proved is regarded as evidentiary, and which itself is regarded as evidentiary of the principal fact; the greater the number of such intermediate links, the less is the probative force of the evidentiary fact proved, with relation to the principal fact. Why? Because, of the several facts thus evidentiary one of another in a chain, each is hable to have its infirmative counter-probabilities, by the disprobative force of each of which, as above, its nett probative force is liable to be diminished.

Accordingly, on the occasion of each such chain, let it be your care to see that no intermediate link or links, with their respectively applicable infirmative suppositions, be omitted.

From the probative force of each evidentiary fact applying to the same principal fact, that of every other will receive an increase.

But no reason can be given for concluding that the sum of the probative force of such evidentiary facts will be uniformly as the number of the facts themselves.

On looking over, for example, a table or list of evidentiary facts, having for their common principal fact delinquency,—it will be found that, in more instances than one, two evidentiary facts, of each of which taken by itself the probative force would be scarcely worth regarding, shall, when taken together, be found to operate with a very considerable degree of probative force: so considerable as to be, if unopposed by any counter-evidence on the other side, conclusive. Or if two, thus unopposed, be not sufficient, three may; and so on.*

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Of facts of the psychological class, there is no one species of evidentiary fact, the probative force of which can with propriety be considered as being in all cases conclusive.

Why? Because, as hath already been seen, there is not one, the probative force of which is not liable to be weakened by different classes of facts, distinguished on that consideration by the appellation of infirmative facts.

Among physical facts, one may be evidentiary of another with any degree of probative force; and accordingly with a degree of force sufficient to be regarded as conclusive.

On this head, see what, under the head of physical incredibility, is said farther on, of the three modifications of extraordinary facts: viz. facts amounting to a violation of a law of nature, facts devious from the course of nature in degree, facts devious in specie. If, the existence of fact A being supposed, the non-existence of fact B would be a violation of any law of nature, or devious in degree or species to such an extent as to be incredible, the probative force of fact A, in relation to the existence of fact B, may be deemed conclusive.

Thus, in regard to quadrupeds, take the two facts, parturition and sexual conjunction. Between these two facts, parturition is the indicative fact—sexual conjunction the fact indicated by it; and, of the former, the probative force, in relation to the existence of the latter, may be pronounced conclusive.

Among physical facts, however, even such as are the most completely conclusive, the conclusiveness affords no sufficient reason for the establishment of unbending rules, imposing on the judge the obligation of forming the conclusion indicated.

Why? Because, in proportion as the rule is safe, secure against being productive of erroneous decision, it is in the same proportion useless. Safe, it is not effective; effective, it is not safe.

Suppose a rule laid down, that, in every cause in which virginity may happen to come in question, parturition shall be regarded as a fact conclusively disprobative of it. The rule would be innocent enough: but where would be the use of it? Is there any the least danger, that, by any judge or set of judges by whom parturition has been admitted to have been satisfactorily proved, the existence of sexual intercourse should be disaffirmed?

If the establishment of any one such rule would be proper, so would that of as many others as could be constructed. But in this way a complete system of physical science would be to be established by authority, and engrafted into the system of judicial procedure: and limits to the improvement of every branch of physical science, and especially of the most important of all—the medical—would be fixed by law.

No rule ought to be laid down, rendering the exhibition of this or that evidentiary fact necessary as a condition sine quá non to a judicial decision affirming or assuming the existence of any other fact in the character of a fact indicated, and requiring for the proof of it the proof of such evidentiary fact.

Reasons.—If the probative force of the other parts of the evidence is not sufficient to produce persuasion on the part of the judge, persuasion will accordingly not be produced; and the rule restraining the judge from acting on the ground of such persuasion will be unnecessary and useless. If the probative force Edition: current; Page: [67] of the evidence is sufficient to produce such persuasion, and such persuasion is produced accordingly, although the proof of the evidentiary fact in question be wanting,—the restrictive rule is improper, prejudicial to the interests of truth and justice.

In the history of law, be the country what it may,—the farther we go back, the more numerous the instances we may expect to find of convictions and executions on insufficient evidence: but, for the opposite reason, the longer we go on in the track of civilization, the more rare we may expect to find the instances of such errors in judicature as have the weakness of the mental faculties for their cause. It is in the strength which, by the continually-increasing stock of information, may be given to the mental faculties of judges by apposite instructions drawn from correct and comprehensive views of the subject, that the true preservative against such errors is to be looked for; not in the restrictive operation of unbending rules of evidence.

If there be any cases in which any such unbending rules promise upon the whole to be beneficial to the interests of truth and justice, the two following seem to be of the number:

1. Where,—the mischief of the decision, if erroneous, being in a certain respect irreparable, and (by reason of the distance of the tribunal from the seat of government or otherwise) the confidence reposed in it by the legislator inferior to that which is reposed by him in some other and higher tribunal,—cases are accordingly marked out, in which, on the ground of evidence of such or such a description, or without the concurrence of evidence of such or such a description, a decision productive of such irreparable consequences shall not be pronounced, or shall not be executed.

It is upon this same principle, that, in the Austrian code, certain offences are marked out, such as magic and witchcraft, in relation to which the inferior tribunals of distant provinces are forbidden to proceed upon any evidence.

2. The other case comprehends in its whole extent the range of capital punishment—the only species of punishment which is absolutely and totally irreparable. But, of the consideration of this irreparability, what is the true result? The impropriety of this mode of punishment: not the propriety of those unbending rules.

In the instance in question, it was the consideration of the nature of the punishment—of the property thus belonging to it—that called into action the humane temerity of the judge. In every system of law into which this irreparable mode of punishment has been admitted—but most of all in the English system, in which the fondness shown to it is so great, and so continually upon the increase—the system of procedure in general, and of the law of evidence in particular, teems with rules and practices tending to the encouragement of criminality in every shape, and most of all in such as are most mischievous. Capital punishment has thus been all along operating, and will continue to operate with continually increasing force, as a slow poison upon the whole system of procedure, including that of evidence. Thus it is that the work of real inhumanity and of false humanity, of folly under that specious name, go on together: and, while substantive law, with its favourite and unwearied instrument, capital punishment* is straining every nerve to tighten the bands of society,—adjective law, with its prejudices and inconsistencies, is as pertinaciously employed in loosening them.

From the above theoretical propositions, the following practical instructions of a monitory nature seem deducible:—

I. Warnings tending to prevent under-valuation:

1. Reject no article of circumstantial evidence on the score of weakness.

2. Much less on the score of its not being conclusive.

3. Hold not the aggregate mass insufficient, for the separate insufficiency of the elementary articles.

4. Hold not an aggregate mass of circumstantial evidence insufficient, for the mere want of an article of this or that one description.

5. Hold not circumstantial insufficient, as such, for the mere want of direct evidence: viz. where direct evidence is not obtainable, or not without preponderant inconvenience in the shape of delay, vexation, and expense.

6. Hold not direct evidence insufficient, merely for the want of circumstantial.

II. Warnings tending to prevent over-valuation:

7. (1.) Set down no article, nor any aggregate mass, of circumstantial evidence, as even provisionally conclusive in all cases.

8. (2.) Much less as conclusive against, or (what comes to the same thing) to the exclusion of, all counter-evidence.

9. (3.) Content not yourself with general circumstantial testimony, when you can have special direct testimony from the same source.

10. (4.) Whatever evidence (in particular, circumstantial evidence) other than that produced by interrogation of the respective parties, presents itself,—if the situation of the party be such as to present any probability of his being able to give explanation of it (i. e. to contribute either to give completeness or correctness to it, or to the inferences deducible from it,)—fail not to employ interrogation—judicial interrogation applied to the party—for the explanation of it.

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11. (5.) Reject not circumstantial as needless, on account of the abundance of direct.

§ 2.: Errors of jurists, from neglect of the above rules.

The warnings given above are (it may be said) reasonable enough, but are they not too obviously so to be of any use?

Among the errors thus pointed at, not one perhaps that has not been embraced in practice, propagated by law-writers, or, (what is worse) carried into effect by legislators and by judges.

In each part of the field of evidence, after what presents itself as the path of utility and reason has been traced out, the course taken in the present work is to bring to view the deviations made from it by the most distinguished systems of established law, the Roman and the English. Such, accordingly, is the course pursued on the occasion now in hand: except that—as exemplifications of such deviation cannot be found for every one of the above monitory rules—to supply the deficiency, the view given of the established practice in the two systems will here be preceded by a few examples, taken from the speculations of jurists, whose notions in regard to the points in question do not appear as yet to have been on any occasion explicitly adopted, so as to have given birth to practice. With a view to this particular subject, the order given to the monitory rules should also have been given to the examples: but, to avoid confounding unauthoritative notions with authoritative practice, the particular principle has been sacrificed to the general one.

1. An aggregate body of circumstantial evidence treated as insufficient, on the ground of the separate insufficiency of the elementary articles.

When, in a penal cause, the charge is supported (as is commonly the case) by a number of evidentiary facts, with or without direct testimony to the principal fact in question,—a natural, and, on the part of the advocate for the defendant, a necessary course, is, to take the body of evidence to pieces—to examine each member of it, each evidentiary fact, separately—and, from the inconclusiveness of each, to infer the inconclusiveness of the whole.

In the case of Captain Donnellan, on the criminative side no article whatever of direct evidence was produced, but a prodigious number of criminative facts—articles of circumstantial evidence. After he was executed, a book was written to prove the evidence insufficient. Each criminative fact was taken separately: how inconclusive this! how inconclusive that! and so on: each being inconclusive of itself, the inference was, that so they were all of them put together. Of the individual premises, each taken separately, the truth was undeniable; but the collective conclusion did not follow.

Donnellan practised distillation: as a proof of poisoning, what did that amount to?—next to nothing. At that rate, all distillers would be poisoners. Not engaged in that or any other occupation with a view to profit, nor yet occupying himself with chemistry in any other shape, still he practised distillation: what did that again amount to?—some small matter perhaps, but very little more. At that rate, all the Lady Bountifuls (a class which, though not quite so numerous as formerly, is not yet quite extract) would be poisoners.

He distilled what there was reason to think was laurel-water,—a known poison, not known to be used for any other purpose: the proof strengthens, though still very far from conclusive.

Thus much as to preparations, though there were others in the case. Go on next to motives. The relation of the defendant to the deceased was such, that, upon the death of the latter, a large property was to devolve upon the former. Here, then, was temptation—a sinister motive, to which he stood exposed. What he saw, what he could not but see, was, an advantage (and that to a great amount) on the point of accruing to him on the happening of that event. In that point of view, he was urged by a particular species of motive (pecuniary interest) to use his endeavours for the bringing about of that event. In that point of view, he stood exposed to the impulsive action of that motive. Does it follow that he yielded to the impulse? Here was a survivor who had profit in expectancy upon the death of the deceased. Does it follow that, at the expense of so horrible a crime, he used his endeavour for the procuring of such death? At that rate, the most common of all causes of death is parricide.

Ill-humour has been observed between man and wife: the woman dies. Is this a proof that she died by murder, and that her husband was the murderer? At that rate, the few couples excepted who might be capable of making title to the flitch at Dunmow, all married men and all married women are murderers.

2. An aggregate body of evidence held insufficient, for want of a particular article of circumstantial evidence.

In several instances that have been made public, and in a number greater than might at first view have been supposed,—a defendant has been convicted of the murder of a man, who has afterwards made his appearance in a living state.

In consideration of the fatal errors in judicature thus brought to light, instances have been mentioned in which a judge has declared his resolution never to concur in any conviction Edition: current; Page: [69] of murder, where the dead body has not been found.* But a resolution known to be thus declared (at least if corroborated by a known instance in which such resolution has been acted upon,) is sufficient to give birth to a rule of jurisprudential law.

The motive of the determination was evidently a laudable one, but the consequences of the determination, if converted into a rule, and that without exception, and known to be so, would be in the highest degree prejudicial to justice. To secure to himself impunity, a murderer would have no more to do but to consume or decompose the body by fire, by lime, or by any other of the wellknown chemical menstrua; or to sink it in an unfathomable part of the sea. In any of these ways might the body be effectually got rid of: and, though it were in the face of any number of witnesses, the rule being established without the correspondent exceptions, impunity would follow of course.

Nor yet would the rule afford the security it aims at, without another condition, not expressed upon the face of it. The body found,—by what evidence is it to be proved to have been found? The judge before whom the prosecution for the homicide is to be tried,—is it to his eyes that the body is to be produceed? This is not in any case what is meant. What, probably enough, is meant, though not expressed, is, that the existence of the body in a dead state should have been ascertained by the testimony of some ocular witness, whose trustworthiness is regarded as being exception-proof: for example, in English law, the coroner with his jury. For, if any testimony at large is to be regarded as sufficient, the intended security is gone. “I saw the body of Titius after he was dead:” “I saw Sempronius beat out the brains of Titius.” Falsehood may attach with as little difficulty upon the one speech as upon the other.†

3. An imperfect body of circumstantial evidence set down as conclusive, for want of due attention to supposable infirmative facts.

Of the need there may be for these warnings, an exemplification may be seen in the doctrine of Lord Coke.‡ Of his division of presumptions (i. e. of circumstantial evidence) into three degrees, in respect of force—violent, probable, and light or temerarious—mention has been made upon another occasion, in another place.∥ “Violenta presumptio” (says he) “is many times” (in many instances) “plena probatio” (full proof:) and the instance he gives is this:—“As if one be run thorow the bodie with a sword in a house, whereof he instantly dieth, and a man is seen to come out of that house with a bloody sword, and no other man was at that time in the house.” “Presumption probabilis moveth little, but presumptio levis sen temeraria moveth not at all.”

To the probative force of this body, or rather article, of circumstantial evidence, two facts present themselves in the character of supposable infirmative facts.

1. The deceased plunged the sword into his own body, as in the case of suicide: the Edition: current; Page: [70] accused, not being in time to prevent him, drew out the sword, and so ran out, through confusion of mind, for chirurgical assistance.

2. The deceased and the accused both wore swords. The deceased, in a fit of passion, attacked the accused. The accused, being close to the wall, had no retreat, and had just time enough to draw his sword, in the hope of keeping off the deceased: the deceased, not seeing the sword in time, ran upon it, and so was killed.

Other suppositions might be started besides these; nor do these exculpative ones either of them seem in any considerable degree less probable than that criminative one: if so, the probability of delinquency, instead of being conclusive, is but as 1 to 2.

Such is the evidence upon which the father of English jurisprudence would have pronounced a man guilty without seruple.

What it is he would have found him guilty of,—murder or manslaughter,—a capital crime, or a crime short of capital,—he does not say: murder, probably enough; since manslaughter, being a sort of alleviation, requires special evidence: murder, accordingly, is the verdict which the coroner’s jury find of course, where no alleviating circumstances, to reduce it to manslaughter, have presented themselves*

§ 3.: Defects of established systems, from neglect of the above rules.

1. General circumstantial testimony, received to the exclusion of special direct testimony from the same source, as also of all counter-evidence, is exemplified in the instance of the several sorts of actions or suits to which the evidence called wager of law† applies.—Restoration of a specific thing is claimed at the defendant’s hands. By whatsoever body of apposite evidence, direct or circumstantial, the claim is supported,—the defendant is allowed to adduce the counter-evidence thus denommated, and the evidence in support of the claim becomes inadmissible. The defendant comes into court, and denies, in general terms, the fact (whatever it be) on the ground of which the obligation is sought to be imposed upon him. Along with him comes a posse of other witnesses: number, a dozen, neither more nor less. They know nothing about the matter; but, by the opinion they have of him, they are certain that what he says is true. The evidence they furnish is so much character evidence.

Swearers of this denomination are like ghosts and witches: nowhere do they exist; but in many and many a place they do as much mischief as if they did. Two or three sorts of actions are altogether laid asleep by them; and the effect of it is, that, for no one moveable thing that he has, has an Englishman any remedy at law. Money is given him instead of it. The sum is never equal in value to the injury sustained by the want of the thing sought. To keep the thing, at the price thus put upon it, is always at the option of the wrong doer.

In Roman law, general circumstantial testimony accepted in lieu of, or in addition to, special direct testimony from the same source, is exemplified in the cases where the oath denominated juramentum expurgatorium‡ was employed. The cases being penal, and the evidence on the criminative side neither sufficient for conviction nor yet for torture, the judge might, if he thought fit, call upon the defendant to swear to his non-delinquency in general terms: of a fixed formulary for that purpose, I know no instance. The description of the practice is obscure and vague enough, like everything else in Roman law.

In these as in all other penal cases, interrogation of the defendant himself was in the power of the judge: extraction, consequently, of a full body of confessorial evidence, or of the denegatory testimony given by him in lieu of it (testimony, of which, on the supposition of delinquency, more or less must have been false.)

Was this power employed? This was letting off a delinquent upon bad and unsatisfactory evidence, when, upon better evidence, Edition: current; Page: [71] and (in case of confession) the very best of all, he had been either shown to be not guilty, or shown to be guilty. This is recurring to inferior evidence, after receiving superior evidence from the same source. It is like Harpagon in the play:*Rends moi, sanste foudler, ce que tu m'as volé: the search had already been made, and produced nothing.

Has the power remained unemployed? This is employing the inferior to the exclusion of the superior evidence. It is as if the master, persuaded of the guilt of his innocent servant, had contented himself with saying to him—“Tell me whether you are guilty or no;” forbearing purposely to make search.

Juramentum suppletorium.—This was an oath in certain non-penal cases. It possessed, in common with the juramentum expurgatorium, the feature which renders it applicable to this purpose. In different nations, on different occasions, it appears to have been employed in the character of an evidentiary fact; right of some sort or other being the fact indicated—right to some service, such as that very extensive sort of service which consists in the transfer of money or money’s worth to the possessor of the right—right to an exemption from an obligation of that or some other nature, sought to be imposed on him.

The error applicable to the present purpose consists in the acceptance of a vague assertion, in addition to, or to the exclusion of, a specific statement; of an article of weak circumstantial evidence, in addition to, or in exclusion of, a body of direct evidence from the same source.†

2. Evidentiary facts excluded altogether, under the idea of their being weak; and even under that of their not being conclusive.

In the case of this, as of every other species of evidence, the production of it should neither be compelled nor admitted, when by such compulsion or admission more evil will be produced in respect of the collateral ends of justice (viz. avoidance of delay, vexation, and expense,) than by the exclusion of it, in respect of the direct end of justice, viz. by danger of indecision.

Except on this ground, however, there is no evidence, presented in the character of circumstantial evidence, the production of which ought not to be, not only permitted, but compelled. In particular, no such evidence ought to be excluded on the ground of deficiency in point of probative force.

Why should any be excluded? Operative, it is useful; inoperative, it is innocent.

The rashness with which, on different pretences, exclusions—peremptory and inexorable exclusions—have been put upon evidences of different descriptions by men of law, will be matter of ample observation in another place.‡ The ground which forms the subject of the present book is that on which this rashness has displayed itself with least violence.

From oral evidence,—circumstantial evidence orally delivered,—it seems to have abstained altogether: in the permanent texture of written evidence, it has found (as it were) solid ground to fasten upon.

In the shape of parole evidence,—be the evidence, when of this description, ever so slight—be the inference it affords ever so short of being conclusive,—there is no objection to the reception of it. In this shape, imagination cannot frame a circumstance more trifling, more inconclusive, than many are which have been admitted to be produced in evidence, and continue to be admitted in every day’s practice.

Admitted? Yes; and with great and just effect. Why? Because (not to speak of greater numbers) even two articles of circumstantial evidence—though each taken by itself weigh but as a feather,—join them together, you will find them pressing on the delinquent with the weight of a millstone.

Give to the evidence in question the form of a written document, the treatment it meets with is reversed. An inexorable bar is now opposed to it. Presented by the mouth of a witness, be its value ever so small, it is allowed to pass for whatever it is worth: presented in writing, if it fall short of being conclusive, it is not allowed to go for anything.

So it be exhibited vivâ voce, no matter how remote and inconclusive the evidentiary fact reported by the circumstantial evidence. When received, the impression made by it may be slight, or amount to nothing; but the lightness of it, how extreme soever, is never made into a ground for the exclusion of it. It is only when consigned to writing that it is scrutinized before admission, and, if not looked upon as weighty enough to be conclusive, is thrown out as worthless. Rash exclusion on one side, or equally rash exclusion on the other: rash exclusion of the lot of evidence in question, or rash exclusion of every other evidence that might have been opposed to it: such is the only alternative.

A record (says the immortal Gilbert, the father of the law of evidence,) a record is a diagram whereby right is demonstrated.∥ To Edition: current; Page: [72] appear, and not to command assent, is beneath its dignity: where demonstration enters, doubt finds no room to stand upon.

Numerous are the instances in which the admissibility of matters of record, in proof of the existence of other matters of record, has been disputed; and in some it has been disputed with success: with relation to the fact supposed to be indicated, the existence of the document in question has been pronounced no evidence; or (what comes to the same thing) the court has in that character declared it inadmissible—refused to pay regard to it.

That the ultimate decision which has taken place in consequence of this rejection, has been contrary to truth and justice, is more than, in all or any of these instances, I could take upon me to affirm: an opinion to that effect, well or ill grounded, would be of no use, materials for torming it are not forthcoming. Possibly, in each one of these instances, had the document been received in evidence, and its probative force been taken into consideration, it would have been found inconclusive: that is, the whole of the evidence on that side (whether the document in question constituted the whole or only a part of it) would have been considered in that light.

Nor yet will I take upon me to say (for perhaps it may not be to be known, and, if it were, the result of the inquiry would not be worth the trouble) whether, in the several instances in question, the case was, that the evidence was rejected without consideration of the tenor of it. Excluded or no in fact, and in that individual cause, it appears at any rate in the character of a species of excluded evidence, in the books of law.* Accordingly, in due form of legal architecture, a species of case is built upon the ground of it: and thereupon, as usual, in each succeeding cause in which the same or a similar point presents itself, the question is—not whether the fact happened, but whether the individual case in hand belongs or does not belong to that species of case.

What is the consequence? Though, in the individual case in hand, not a person concerned that is not persuaded of the existence of the fact indicated—the existence of the document which, supposing it to exist, would be decisive; persuaded, and that by the other document, the existence of which is exhibited in the character of the evidentiary fact; yet still the decision is to be directly contrary.—Why? Because the case is of the same species as that in which, in the former instance, an evidentiary document of the same or a similar species was regarded as inadmissible.

What, then, is the practical conclusion here contended for? It is this: viz. that every article of evidence, the nature of which is to operate in the character of circumstantial evidence—whether it be presented in the form of oral or of written evidence, and (if in the form of written evidence) whether in the form of a judicial document or any other,—ought equally to be admitted: the judge of fact being left equally free, in all these cases, to form his judgment of its probative force. That accordingly, in those instances where (as in England) the function of the judge of fact is exercised by a jury, the question respecting the probative force of the document in question, with reference to the fact alleged to be indicated by it, ought to be suffered to be submitted to them—in the same manner as the probative force of any article of circumstantial evidence exhibited to them through the medium of oral testimony.

Circumstantial evidence at large (supposing no legal cause of exclusion opposable to the testimony of the reporting witness,) circumstantial evidence, as such, is supposed to go to a jury, who, being simple and unlearned persons, are left to judge of it in their own way, without any better light for their guidance than the light of common sense. But it would be beneath the dignity of the sages of the law to suffer themselves to be led by any such vulgar guidance. When they judge, it must be by rule and measure: practice, not reason, is their guide. To judge of the probative force of evidence is not their practice: it is an operation out of the sphere of their practice, and beneath it. The sort of question to which they are in use to find answer, is, whether a piece of evidence shall be admitted or excluded. Between being admitted and being deemed conclusive—between a man’s being heard, and his exercising an absolute Edition: current; Page: [73] command over the decision—there is in the nature of things a medium obvious enough. But whatever there may be in the nature of things, in their practice there is none. If admitted (says the lawyer to himself) it is that sort of evidence that must be conclusive; for who is there that shall take upon him to pronounce it otherwise? Not I: it is not our province—it is not our practice, to weigh the force of evidence. Not the jury; for, being a law document, it belongs not to them to judge of it—such matters are too high for them. It I considered it as conclusive,—insomuch that, were I to take it into consideration, I should regard it as absolutely demonstrative of the fact indicated? Yes. But could I regard it in that light? No, I could not. What, then, is to be done with it? Done with it?—why, what else can be done with it than what we are so much in the habit of doing by evidence of all sorts, and for any the slightest reason, or no reason?—shut the door against it, and refuse to look at it.

3. A single article of circumstantial evidence set out as being of itself conclusive (viz. of the existence of the fact indicated,) is an incongruity exemplified in the case where, on the score of interest (i. e. exposure to the sinister and seductive action of this or that species of motive,) a man is excluded from the faculty of giving testimony in the cause. Titius has such an interest in this cause, that, supposing him to swear falsely to such or such a fact, and thereby commit perjury, and supposing his testimony to be believed, he would be a gainer by such perjury. By the impulse of that motive, he is prompted to commit perjury; therefore, if heard, he would perjure himself; therefore he shall not be so much as heard. The exclusion is just as rational as if Donnellan had been convicted of the murder on no other evidence than that of his being next in remainder to the estate. If this were reason as well as law, no witness ought ever to be heard in the character of a witness: no man ought ever to be out of the pillory.

Observe, that, though the assumption here made were always realized, it would not still be sufficient to warrant the exclusion grounded on it. For the strongest interest which a witness can have in being guilty of mendacity is inconsiderable, in comparison with the interest by which a defendant under examination in a capital case is prompted to incur the same guilt: and for this very reason, the evidence which a man in this situation yields to his own prejudice is of all evidence the most satisfactory. But of this more fully in its proper place.*

In respect of probative force, circumstantial evidence has sometimes been put into comparison with direct, both being considered in the lump: and, on a survey thus superficial, the superiority has sometimes been attributed to the one, sometimes to the other.

A few observations, for the purpose of clearing up the subject, may perhaps not be misemployed.

Possession of either affords, as observed above, no reason for neglecting the other.

But it may happen, that (especially in a penal case on the defendant’s side) evidence of one of the two sorts may be supposed to be wanting: or, in a cause of any sort, on each of the two opposite sides, evidence of the one sort may stand single or predominate.

Taking circumstantial in the largest sense, so as to include all the several modifications that have here been referred to that head,—it has already been observed that in no case perhaps was ever a mass of evidence formed, consisting of direct evidence alone, without any admixture of circumstantial: more especially not in any disputed case; and the rather, as different portions of direct evidence will operate in support of each other, thus acting each of them in the character of circumstantial: direct evidence being that which affords not, or at least requires not, any inferences; whereas circumstantial is in a manner composed throughout of inferences.

But circumstantial evidence is, on the other hand, presented oftentimes without any admixture of direct; and in that pure state, decisions are often grounded on it.

Regarded in an abstract point of view,—the essence of the species being considered, without regard to the quantity naturally found in a state of conjunction, in the several individual cases,—the inferiority of circumstantial, as compared with direct, is out of dispute. Direct evidence requires no inference: circumstantial evidence is composed of inferences: and, as already observed, there is scarce an inference to which it may not happen to be fallacious.

Strictly speaking, in the case of direct evidence (it is to be observed) there is always indeed an inference; but this inference is in every instance of the same nature,—from the report made by the witness, the inference that the facts contained in that report are true.

Of circumstantial evidence, by way of argument in proof of the superiority of its probative force over that of direct evidence, it has been said that it cannot lie. But it is only of certain modifications of circumstantial evidence that the proposition is true.

The evidence, and the only evidence, which cannot lie, is that which, without the intervention Edition: current; Page: [74] of any human testimony, presents itself directly to the senses of the judge. In this case is real evidence; and such involuntary evidence as is exhibited by the deportment of a party or an extraneous witness while undergoing the process of interrogation. In this same situation is even lying testimony (false responsion) itself, considered in respect of the inferences which, on the supposition of its mendacity, it affords—inferences in virtue of which its character is changed from that of direct to that of circumstantial evidence.

But all evidence, which, in its way from the source of evidence to the senses of the judge, has passed through the lips or the pen of a human being, is no less susceptible of that pernicious quality than direct evidence is. And in this situation are all the remaining modifications of circumstantial evidence (real evidence itself not excepted,) when, by having passed through the lips or pen of a deposing witness, it has sunk into the state of supposed real evidence reported.

But it is only in so far as it is a cause of deception, and in so far as it acts with success in that character, that lying is productive of effects adverse to the ends of justice: and real evidence, it has been seen, is no less capable of acting in this character than direct personal evidence: real evidence, like written evidence, being, in the hands of a forger, a source no less capable of producing deception, than, when passed through a mendacious mouth or pen, the direct testimony of a deposing witness is.

Thus much, however, is true, viz. that it is only here and there by accident that real evidence is capable of being fabricated, or by alteration adapted to a deceptitious purpose: whereas there is no case in which it may not happen to a man, in the character of a deponent, to stain his deposition by mendacity, if he sees what to him forms an adequate inducement, and is content to run the risk.

The features of advantage by which circumstantial evidence is in a more particular manner fitted for rendering service to the cause of truth and justice, seem to be as follows:—

1. By including in its composition a portion of circumstantial evidence, the aggregate mass on either side is, if mendacious, the more exposed to be disproved. Every false allegation being liable to be disproved by any such notoriously true fact as it is incompatible with,—the greater the number of such distinct false facts, the more the aggregate mass of them is exposed to be disproved: for it is the property of a mass of circumstantial evidence, in proportion to the extent of it, to bring a more and more extensive assemblage of facts under the cognizance of the judge.

2. Of that additional mass of facts, thus apt to be brought upon the carpet by circumstantial evidence, parts more or less considerable in number will have been brought forward by so many different deposing witnesses. But, the greater the number of deposing witnesses, the more seldom will it happen that any such concert, and that a successful one, has been produced, as is necessary to give effect to a plan of mendacious testimony, in the execution of which, in the character of deposing witnesses, divers individuals are concerned.

Thus, suppose a guilty defendant’s reliance placed in a false mass of alibi evidence. The greater the number of mendacious witnesses, who depose to their having seen him at the time in question, at a place at which he really was not at that time (they having been themselves each of them at a different place at that time,) the greater the number of false depositions, each of which is exposed to be disproved by true ones. And so in case of evidence to character.

3. When, for giving effect to a plan of mendacious deception, direct testimony is of itself, and without any aid from circumstantial evidence, regarded as sufficient,—the principal contriver sees before him a comparatively extensive circle, within which he may expect to find a mendacious witness, or an assortment of mendacious witnesses, sufficient to his purpose. But where, to the success of the plan, the fabrication or destruction of an article of circumstantial evidence is necessary, the extent of his field of choice may in this way find itself obstructed by obstacles not to be surmounted.*

One thing may, on this occasion, have a claim to notice: viz. that, in a great (probably the greater) number of instances, a fact necessary to be established in disfavour Edition: current; Page: [75] of the defendant’s side—a fact necessary to be established on the part of the plaintiff—belongs to that class of facts which is scarce capable of being proved to satisfaction without the aid of circumstantial evidence.

In this situation, for example, are all those facts of a psychological class, the proof of which, as against the defendant, is necessary to his conviction; and which cannot be proved by direct evidence other than that testimony of his own—that confessorial evidence—which nothing but an assured expectation of a sufficient mass of inculpative evidence from other quarters will ever prevail upon him to give. Criminative or otherwise inculpative consciousness,—inculpative, criminative intentions,—to which is added, in some cases, the existence and influence of this or that particular sort of motive;—to one or other of these heads may be referred the psychological facts, proof of which, one or more of them, is (in case of most of the offences occupying a high rank in the scale of criminality or penality) regarded, and that justly, as indispensable.

But these are among the facts, the existence of which no defendant, who does not regard his case as rendered desperate by other evidence, will ever acknowledge. Proof, therefore, whatsoever they are susceptible of, if they receive, they must receive from extraneous evidence: and, until the parable of the man with windows in his breast be realized, such extraneous evidence cannot be of any other nature than that of circumstantial evidence, viz. under one or other of the modifications as herein above brought to view.*

§ 1.: Improbability and impossibility are names, not for any qualities of the facts themselves, but for our persuasion of their non-existence.

Impossibility and Improbability are words that serve to bring to view a particular, though very extensive, modification of circumstantial evidence.

The occasion on which they are employed,—the occasion, at least, on which, under the present head, I shall consider them as employed,—is this:—on one side, a fact is deposed to by a witness; on the other side, the truth of it is denied—denied, not on the ground of any specific cause of untrustworthiness on the part of the witness, but because the fact is in its own nature impossible: impossible, or (what in practice comes to the same thing) too improbable to be believed on the strength of such testimony as is adduced in proof of it.

What is the nature and probative force of this modification of circumstantial evidence? Is there any, and what, criterion, by which impossible facts, or facts which are to such a degree improbable, as to be, for practical purposes, equivalent to impossible ones, may be distinguished from all others?

If any such criterion existed, its use injudicature would be great indeed. By the help of it, a list of such impossible and quasi-impossible facts might in that case be made out—made Edition: current; Page: [77] out by the legislator, and put into the hands of the judge. To know whether the probative force of the testimony in question were or were not destroyed by this modification of circumstantial disprobative evidence, the judge would have nothing more to do than to look into the list, and see whether the species of fact in question were to be found in it.

Unfortunately, there exists no such criterion—no possibility (if the word may here be employed without self-contradiction) of making up any such list. Not only would one man’s list contain articles which another man would not admit into his; but the same article which would be found in one man’s list of impossibilities, would be found in another man’s list of certainties.

From a man who sets out with this observation, no such list, nor any attempt to form one, can of course be expected. Yet, on the following questions, some light, however faint, may be, and will here be endeavoured to be, reflected.

1. What it is men mean, when they speak of a fact as being impossible—intrinsically impossible?

2. To what causes it is owing that one man’s list of impossible facts will be so different from another’s?

3. Different modifications of impossibility: different classes of facts which men in general—well-informed men in general, may be expected to concur in regarding as impossible.

4. Among facts likely to be, in general, considered as impossible, what classes are of a nature to be adduced in evidence?

When, upon consideration given to a supposed matter of fact, a man, feeling in himself a persuasion of its non-existence, comes to give expression to that persuasion,—he pronounces the matter of fact, according to the strength of such his persuasion, either more or less improbable, or impossible.

In and by the form of words thus employed for giving expression to that which is in truth nothing more than a psychological matter of fact, the scene of which lies in, and is confined to, his own breast,—a sort of quality is thus ascribed to the external phenomenon, or supposed phenomenon; viz. the matter of fact, or supposed matter of fact itself. Upon examination, this quality, it will be seen, is purely a fictitious one, a mere figment of the imagination; and neither improbability and impossibility on the one hand, nor their opposites, probability and certainty, on the other, have any real place in the nature of the things themselves.*

So far as concerns probability and improbability, the fictitiousness of this group of Edition: current; Page: [78] qualities will scarcely, when once suggested, appear exposed to doubt.

Take any supposed past matter of fact whatever, giving to it its situation in respect of place and time. At the time in question, in the place in question, either it had existence, or it had not: there is no medium. Between existence and non-existence there is no medium, no other alternative. By probability—by improbability,—by each of these a medium is supposed—an indefinite number of alternatives is supposed.

At the same time, the same matter of fact which to one man is probable, or (if such be his confidence) certain, is to another man improbable, or, if such be his confidence, impossible.

Often and often, even to one and the same man, at different times, all this group of fictitious and mutually incompatible qualities have manifested themselves.

If his persuasion be felt to be of such a strength, that no circumstance capable of being added to the supposed matter of fact could, in his view of the matter, make any addition to that strength; or if, on looking round for other conceivable matters of fact, he fails of finding any one, in relation to which his persuasion of its non-existence could be more intense,—impossible is the epithet he attaches to the supposed matter of fact—impossibility is the quality which he ascribes to it.

If, on the other hand, a circumstance presents itself, by which, in his view of the matter, an addition might be made to the intensity of such disaffirmative persuasion; or if the supposed matter of fact presents itself as one in relation to which his persuasion of its non-existence might be more intense; in such case, not impossible, but improbable, is the epithet,—not impossibility, but improbability, is the quality ascribed.

Certainty, which is the opposite to impossibility, or rather of which impossibility is the opposite, is applied to the persuasion, and from thence to the supposed matter of fact. It is not, any more than impossibility, applied or applicable to testimony.

As certainty, so uncertainty, applies itself to the persuasion and the fact, and not to the testimony. In the scale of persuasion, it embraces all degrees except the two extremes. The existence of a fact is not matter of uncertainty to me, if the fact be regarded by me as impossible.

Certainty, therefore, has for its opposite, uncertainty in one way—impossibility in another. Uncertainty, in the language of logicians, is its contradictory opposite—impossibility, its contrary opposite.

The fiction by which (in considering the strength of a man’s persuasion in relation to this or that fact, and the probative force of any other matter of fact when viewed in the character of an evidentiary fact in relation to it) occasion is taken to ascribe a correspondent quality, indicated by some such words as certainty and probability, to the principal fact itself,—appears to be like so many other figments, among the offspring of the affections and passions incident to human nature. It is among the contrivances a man employs to force other men to entertain, or appear to entertain, a persuasion which he himself entertains or appears to entertain, and to make a pretence or apparent justification for the pain which he would find a pleasure in inflicting on those on whom a force so applied should have failed to be productive of such its intended effect.

Were it once to be allowed, that, as applied to the facts themselves which are in question, probability and certainty are mere fictions and modes of speaking; that all of which, on any such occasion, a man can be assured, is his own persuasion in relation to it; that that persuasion will have had for its cause some article or articles of evidence, direct or circumstantial, real or personal, and will be the result of, and in its degree and magnitude proportioned to, the probative force of that evidence; that, of such evidence, neither the probative force, nor consequently the strength of his persuasion, are at his command; that it is not in the power of any article of evidence to have acted with any degree of probative force upon, nor consequently to have given existence to any persuasion Edition: current; Page: [79] in a mind to which it has not been applied; and that therefore it is not in the power of any evidence to give either certainty or probability to any matter of fact (the matter of fact being, at the time in question, either in existence or not in existence, and neither the evidence nor the persuasion being capable of making any the slightest change in it,) that it depends in a considerable degree upon the mental constitutions of A and B respectively, what sort of persuasion, if any, shall be produced in their minds by the application of any given article of evidence; and that it is no more in the power of evidence applied to the mind of A, and not to that of B, to produce in the mind of B a persuasion of any kind, than it is in the power of evidence applied to the mind of B, and not of A, to produce a persuasion on the mind of A;—were all this to be duly considered and allowed, neither the existence nor the non-existence of a persuasion concerning a matter of fact of any sort, would have the effect of presenting to any person any other person as a proper object of punishment, or so much as resentment.

But the certainty of this or that fact is assumed as perfect and indisputable: and thus he of whom it is conceived that he fails of regarding, or of representing himself as regarding, that same fact in such its true light, is on no better foundation considered and treated as being either mendacious, or perverse and obstinate: perverse and obstinate, if he fails of regarding it in that light—mendacious, if, it being impossible to him to fail of regarding it in that light, he speaks of himself as if he did not.

When a man is himself persuaded—or though he does but, under the impulse of some interest by which he is actuated, appear to be, or profess to be, persuaded—of the existence of a fact,—it is matter of pain and vexation to him to suppose that this same persuasion fails of being entertained, still more to observe that it is professed not to be entertained, by those with whom, on the occasion of it, he has to deal.

Hence it is that, in his mind and in his discourse, to entertain it is made matter of merit—to fail to entertain it, matter of demerit and blame, on the part of others with whom he has to do: and, to cause them to pursue that supposed meritorious line of conduct, the power of reward, if within his reach, is employed; and to deter them from the opposite conduct, even the power of punishment: of both which powers, in the application thus made of them, mankind have been unhappily accustomed to see and to feel the exercise, carried to a pitch so repugnant to the dictates of humanity and reason.

§ 2.: Impossible facts distinguished from verbal contradictions.

It having been shown that improbability and impossibility, applied to a matter of fact, are merely terms expressing a certain strength of persuasion of the non-existence of that fact—what remains is, to show what are the grounds on which such a persuasion is liable to be entertained: to show, in other words, in what consists the improbability or impossibility of any alleged fact.

Previously, however, to entering upon this inquiry, it will be necessary to discard out of the list of impossible facts, articles that might be in danger of being considered as included in it. These are—

1. Contradictions in terms: or, as they might be termed, verbal impossibilities. Examples: Two and two are not so many as four:—Two and two are more than four:—The same thing is, and is not, at the same time.

The truth is, that in these cases no matter of fact at all is asserted; consequently none of which it can be said that it is impossible.*

2. Inconceivable facts. Sometimes to this class, sometimes to the former, belong the opposites of a variety of propositions of a mathematical nature: e. g. that two and two should be either more or less than equal to four: that two right lines should of themselves inclose a space.†

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§ 3.: No facts universally recognised to be incredible.

Before I enter upon the topic announced by the word incredibility, a topic the consideration of which does really belong to the subject of judicial evidence, it may be of use to clear the inquiry of a topic that does not belong to it, viz. impossibility. On the former, it will be at all times in the power of a reasonable man, in the station of a judge, to form a persuasion sufficient for his guidance: on the other, it will not he in the power of a reasonable man, in that station, to form a persuasion sufficient for his guidance in the business of judicature: and, of the introduction of the topic in argument, nothing but perplexity and illusion can be the result.

In truth, the degree of incredibility that can with propriety be the subject of consideration for any purpose of judicature, is merely relative and comparative. The object of comparison is the probative force of the evidence by which the existence of the fact considered as improbable is indicated: and the question is, which of the two forces ought to be deemed the greater?—the probative force of the testimony by which the existence of the fact in question is indicated? or the disprobative force designated or pointed to by the word incredibility, as employed to express an attribute of the fact? Let the disprobative force of the incredibility be but ever so little greater than the probative force of the testimony by which the existence of the fact is maintained, it is sufficient for the purpose of judicature: the question concerning any superior degree is purely speculative, not applicable to judicial practice, and, as such, irrelevant to the business of judicature—to the question (whatever it be) before the court.

In a loose and popular sense, nothing can be more frequent than the use of the word impossible, and its conjugate impossibility: frequent, and (such is the exigency of language,) we may venture to say, necessary. But, if applied to the subject of judicial evidence, to express an idea distinct from, and (if one may so say) superior to, that of improbability—a high degree of improbability,—it then becomes productive of the confusion above spoken of.

The impropriety of introducing the word in this strict sense, on a judicial occasion (not to speak of other occasions,) may be rendered apparent by this consideration, viz. that in the use of it in this sense is involved the assumption of omniscience and infallibility on the part of him who uses it.*

Examples lending an apparent countenance to the use of it in this strict sense, may, I am aware, not be altogether wanting: but, upon a closer inspection, it will appear, that the objects in question either do not come at all under the notion of facts, or at any rate not under the notion of such facts as are capable of being made the subject of evidence.

Take the following examples:—

1. It is impossible for the same thing to be, and not to be. The negative or opposite of this, it may be said, is a fact, the incredibility of which will be recognised by everybody. And so with the two following:—

2. Where there is no property, there is no injustice.

3. Two and two make four.

Answer.—In the first case, no fact, properly speaking, is concerned. In that case we have a proposition; but it has not any fact for the subject of it. Examined closely, it will be found to be no more than a proposition concerning the signification of words. So vague and so inapplicable to any useful purpose is the import it conveys, that it is Edition: current; Page: [81] difficult to say what it does amount to: perhaps an observation relative to the use of the word not; showing an occasion on which it cannot with propriety be employed.

No fact at all being indicated by the proposition in question, no fact is indicated by it capable of forming a subject of controversy in a court of justice.

2. The second supposed example is brought to view on account of the deserved celebrity of the author, and as an instance to show how idle and nugatory may be the language of the acutest mind, when dealing with propositions of an extensive import, without having as yet scrutinized into their contents, and applied them to particulars.

Howsoever it may be with the preceding proposition, this one may readily be seen to be neither more nor less than a proposition concerning the import of words. Where you cannot, in the way in question, employ the word property, neither can you, in the way in question, employ the word injustice.*

3. That the proposition, two and two make four, is neither more nor less than a proposition concerning the import of words, seems evident enough, as soon as intimated. To these same apples to which, when taken together, I apply the numeral word four,—to these same bodies, when divided into two parcels equal in number, I apply respectively the numeral words two and two; and in both cases with equal propriety, and conformity to the usage of language. In this, then, we have another instance of a proposition not enunciative of any fact—of any fact having for its subject-matter anything other than the occasion on which the words in question have been wont, in the language in question, to be employed.

In this example, then, we do not see any exception to the general proposition in question; viz. the proposition, that, of facts liable to be the subject of judicial controversy, there is no assignable one which all men would be sure to be agreed in speaking of as incredible:—and this for the three following reasons:—

1. The proposition in question—two and two make four—is not, properly speaking, the enunciation of a matter of fact,—only of a manner of employing words.

2. If that, which it is an enunciation of, were, properly speaking, a matter of fact, it would not be of the number of those facts which are liable to be the subject of judicial controversy or exhibition.

3. Although it were a fact, and liable to be the subject of judicial controversy or exhibition, there would be no assurance that all men would be agreed in speaking of the existence of it as certain, or the negation of it as incredible.

Did any such thing exist as a catalogue of universally-acknowledged impossible, or even incredible facts, and these facts liable to be brought to view in judicature,—the facts being arranged in alphabetical order, open the dictionary, the cause is at an end.

Unfortunately, so far from a collection of such facts, whether any one such fact be to be found, is more than I would venture willingly to determine: and if forced to answer, my answer, I suspect, would rather be in the negative.

If, among physical facts, there should be one that presented a fairer chance than another of being allowed to occupy a place in such a catalogue, it should, I think, be this, viz. the existence of any body in two distinct places at the same time. But this, which, by the greater part of mankind, would (I suppose) be admitted into the catalogue of incredible facts, is, by one portion of mankind, Edition: current; Page: [82] nor that an inconsiderable one, held not to be incredible without one exception: and in the case to which that exception extends, it is held to be not simply not incredible, but certain and indisputable. Far be it from me to mention this deviation from the more common opinion, as matter of reproach to the deviators: I mention it only in proof of the discrepancy—perhaps the incurable discrepancy—of opinion, that prevails among mankind, and as one out of so many other considerations which concur in impressing the impropriety of precipitate exclusions and conclusions on the mind of an upright and zealous judge. As to the exception in question; whether in point of truth it be warranted or no, it belongs not to the present subject to inquire. Fortunately, supposing it unwarranted,—so long as the proposition, how paradoxical soever, confines itself to the highly extraordinary case to which alone it seems to have ever hitherto been applied,—no error, if it be one, can be more innocent to every purpose of judicature.

As there is nothing whatever (supposing it possible) that men cannot be made to do,—so there is no fact whatever that men may not be made to speak of as certain or as incredible—no proposition which they may not be made to speak of as certainly true or certainly false,—by interest, real or imagined—by hope of pleasure, or fear of pain, from a source conceived (rightly or erroneously) to exist. In the particular case in question (two and two make four)—this subjection of discourse (as of all other modifications of human agency) to interest—this consequent versatility and ununiformity of discourse, has not, perhaps, been exemplified. But, in an example that stands next to it, the exemplification has actually and notoriously taken place. That two and two make four, has, perhaps, never been denied. But that one and one and one make three, has been denied. That in its application to most subjects it has been generally spoken of as true, is evident enough; otherwise, the known usage of language, and the known import of the word three, could not have obtained. But, that there is a subject in relation to which this agreement does not obtain, is, in many countries, matter of equal notoriety. Agreed, as applied to apples; agreed, as applied to men; not agreed, as applied to Gods.

I mention it, not as meaning to take a part in such a controversy; I mention it only as a striking proof, as well as illustration, that there is no fact whatever, real or nominal, that is out of the reach of controversy:—a proposition which, to the present purpose, has already been shown to be of no small practical importance.

In vain would it be to say, that the exception here is in language merely, not in persuasion. As a general proposition, it is but too true, that persuasion and language are but too often at variance; but in the instance of no one individual person would I take upon special grounds, that any such variance had place in this particular case. Granting, however, that, on the present occasion, persuasion were not conformable to language, what would it signify to the present purpose? It is in language, and in language only, that the catalogue in question, the supposed catalogue of facts universally agreed to be incredible, would be expressed.

By these same considerations it may be rendered equally apparent, that if, at any given moment, an article were in existence fit for, entering into the composition of such a catalogue, the next moment might at any time expunge the article, and leave the catalogue a blank. Neither over internal persuasion, nor over exterior discourse, is the power of interest less at one time than another. Today, men are agreed, that, to the truth of the proposition “one and one and one are equal to three,” there is but this one exception. Let human laws, or opinion of divine command, or any other efficient cause of interest, experience an appropriate change, there shall be no exception at all, or any number of exceptions. And so in regard to the proposition, two and two make four, or any other proposition of grammar, mathematics, or physics.

Under the influence of interest, so far is what may be termed the natural incredibility of a fact from excluding it from a place in the catalogue of credible facts, and vice versâ, that its tendency may be, and seems to be, to provide it with a place in that same catalogue, and a place even in the class of certain facts. For, let the expectation of reward be annexed to the practice of regarding or speaking of facts naturally incredible as if they were certain, and let this reward be to be obtained pure, earned without sacrifice in the shape of reputation, or any other shape, what should hinder it from being embraced? Credo quia impossibile est, is the often-mentioned and natural result of the determination generated, and enthusiasm lighted up, by prospects of this kind. For at what cheaper rate can the matter of reward be earned in any shape? And so of punishment: a principle of action, the force of which, when applied in adequate quantity, is, in its operation, still more certain and irresistible.

What the influence may be (beneficial or otherwise) of the matter of reward or punishment so applied, to the interests of morality, knowledge, or social harmony, belongs not to the present place. When, of the above-mentioned proposition, which does belong to the present place, the truth is established, the inquiry is at an end.

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§ 4.: Improbability and impossibility resolvable into disconformity to the established course of nature.

An incredible fact, as contradistinguished from a verbal contradiction (whether improbable or impossible be the epithet by which the particular strength of the belief in its non-existence is designated,) owes its incredibility to one cause, and to one cause only.

This cause admits of a variety of appellations. On the part of the matter of fact deposed to by the affirmative evidence, disconformity (as supposed) to the established course* of nature: thus may be expressed what seems to be the most apposite and the clearest designation, of which, in any such small number of words, it is susceptible.

From the course of nature at large, that of the mental part of man’s nature requires to be distinguished; hence disconformity in a physical respect, and disconformity in a psychological respect.

The remarks which follow, will, in the first instance, refer more particularly to physical, as contradistinguished from psychological facts. But they will, for the most part, be found applicable equally to both.

As it is only from evidence, coming under one or other of the descriptions already brought to view, that any notion whatever concerning the established course of nature can be derived; and consequently any notion concerning what is conformable to that course; so neither from any other source can any notion be derived respecting the disconformity of any supposed matter of fact to that same course.

The evidence thus characterized will, therefore, be composed of an indeterminate and indefinite multitude of matters of fact, drawn from all the evidence of every description that to the mind of the person in question (viz. the judge,) have happened to present themselves during the whole course of his life; and composed of all such facts as present themselves to him as bearing the sort of relation in question, to the matter of fact in question.

To produce disbelief of the existence of the matter of fact in question, this disconformity must be such as (in his judgment) to render its existence incompatible with a certain portion, at least, of those other numberless matters of fact, of the existence of which he has been persuaded by the indeterminate but ample mass of evidence above indicated.

When the improbability (that is, the apparent, the relative, improbability) of an alleged fact, is set in the balance against testimony, it is still at bottom little more than testimony against testimony. Of the facts of the existence of which a man is persuaded, the knowledge, the persuasion, is derived partly from his own perceptions, partly from the alleged perceptions of others. But, in the unmeasurable mass of facts which (at least in a country where civilization is tolerably diffused) the Edition: current; Page: [84] most ignorant man is said to know, the number of those of which his knowledge is derived from his own immediate perceptions—from his own individual experience, is small, in comparison with those, for the knowledge or supposed knowledge of which, he stands indebted to the experience or supposed experience of others.

Concerning individual facts,—so far as mere perception, exclusively of inference drawn from perception by judgment, is concerned,—no force of exterior evidence can either increase or diminish the degree of persuasion of which such perceptions cannot but have been productive. But in regard to species of facts, there is not one, perhaps, concerning which the persuasion derived by a man from his own experience, would not be capable of being overborne by allegations of contrary experience on the part of other men. What makes our confidence so entire as it is in regard to the existence of those species or classes of individual facts, the existence of which is announced by the phrase which exhibits as the cause of it this or that law of nature, is,—that, so often as it falls in his way to make the trial, a man finds his own perceptions in relation to them confirmed by the reputed perceptions of all other men without exception.

§ 5.: On the three modes of disconformity to the course of nature;—viz. 1. Disconformity in toto; 2. Disconformity in degree; 3. Disconformity in specie.

It has been seen, that in all cases without exception, in which any matter of fact is supposed by any person to be incredible, the ground of the supposition is a supposed disconformity between this matter of fact, and what is by the person in question considered to be the established course of nature.

But this disconformity is of three kinds; and corresponding to these three kinds of disconformity are three classes, into which facts supposed to be incredible may be divided.

1. Facts disconformable in toto: facts which, supposing them true, would be violations of some manifest and generally-recognised law of nature: e. g. a body at the same time in two different places.

2. Facts disconformable in degree: true, perhaps, in every day’s experience, in certain degrees; false, in the degree in which, by the testimony in question, they are stated as being true: e. g. a man sixty feet high.

3. Facts disconformable in specie: facts altogether different from any which have ever been observed, but which, if true, would not be violations of any generally-recognised law of nature: e. g. the unicorn.

It is manifest, that in the two last of these classes, the incredibility of the fact rises only to a greater or less degree of improbability, not to that of impossibility. The supposed facts are not repugnant to the established course of nature; they are only not conformable to it: they are facts which are not yet known to exist, but which, for aught we know, may exist; though, if true, they would belong to the class of extraordinary facts, and therefore require a greater degree of evidence to establish their truth, than is necessary in the case of a fact exactly resembling the events which occur every day.*

Though facts of these two classes can never be properly said to be impossible, they may be improbable to a degree little short of practical impossibility.

I. Facts disconformable in toto: facts repugnant to the course of nature.

To give a complete list of facts impossible in toto, would be to give a complete list of those general observations which have been, or use to be, characterized by the appellation of laws (physical laws) of nature.

To give any such complete list, will, I suppose, be universally recognised as beyond the limits of human knowledge, in its present state: a complete system of physics might be considered as included in it.

By way of illustration, I will venture to propose a few articles as a specimen of what might be the contents of such a list.

Specimen of the laws of nature common to all matter, as far as hitherto known:—

1. No two bodies can be in the same place at the same time (cases of penetration and inclusion not excepted.)

2. No one body can be in two places at the same time.

3. All known bodies are, in proportion to their quantities of matter, affected by the law of gravitation.

4. All bodies are governed by the law of gravitation, except in so far as an exception to that law is created by any of the other known causes of motion or rest. In other words,

5. For each instant of time, the place of every body, of every particle of matter within the reach of our observation, is determined by the law of gravitation, modified by the other known primum mobiles, or causes of motion and rest. These seem to be as follows:—

1. The centrifugal force.

2. The force of cohesion—the attraction observed to take place amongst the homogeneous parts of the same whole.

3. The force of chemical attraction; to which, perhaps, may be to be added repulsion. The attraction (and repulsion) observed to Edition: current; Page: [85] take place amongst the contiguous heterogeneous parts of the same whole.

4. The force of repulsion or elasticity, given to the particles of other matter by caloric, when, being united with them, it forms a gas.

5. The force of expansion and contraction (repulsion and re-attraction) produced by the addition and subtraction of caloric to and from other bodies in the states of solidity and liquidity.

6. The force of electrical and galvanic attraction and repulsion.

7. The force of magnetic attraction and repulsion.

8. The force of muscular motion put in action by the will.

9. The force of muscular motion put in action by the vital power, in the case of the involuntary motions that take in living animals.

10. The force of muscular motion put in action in the way of animal galvanism.

11. The force of vegetation.

Of these forces (setting aside the centrifugal force, the existence of which is rather matter of inference than observation) the influence of gravity is so much more extensive and powerful than the rest, that the observation expressive of its existence seems entitled to be distinguished by the appellation of the general or universal law of nature, applicable to all bodies of which we have any sort of cognizance while the other laws of nature, as above brought to view, may be considered as constituting so many exceptive clauses, with reference to that general law. In most of these instances, the force is not perceptible but in the case where the distance between the particles concerned is extremely small: and accordingly, in few, if any, can it be clearly perceived to have place beyond the limits of the planet which we occupy.*

Taking this, for argument’s sake, as a complete list of primum mobiles (and I am inclined to think it would not be found to be very far from a complete one,) any motion which, being in a direction opposite to that of the attraction of gravitation, should not be referable to any one of those particular causes of motion, may be pronounced impossible: the existence of any such motion on any given body upon or near any part of the earth’s surface, for and during any given space of time an impossible fact.

A particular example may here help to explain the nature and probative force of impossibility—physical impossibility, and that impossibility in toto—as adduced in the character of an evidentiary fact disprobative of the supposed fact, supposing the existence of it averred by direct testimony.

In one or more of the many books formerly current on the subject of witchcraft and apparitions, I remember reading the following, stated as a fact. In a room somewhat lofty, not by any muscular exertions either of his own or of any other person, other persons being however at the same time in the same room, a man finds himself gradually raised up to the height of the ceiling, and let down again; his body all the time not being in contact with any other, except those of which his apparel was composed.

This I would venture to give as a specimen of a sort of fact practically speaking impossible, viz. such an one as I could not be persuaded of the truth of, not only upon the testimony of any one single witness, but upon the testimony of any number of witnesses that ever found their aggregate testimony contradicted by other witnesses in any court of justice. The supposed fact impossible?—why impossible? Because it is in repugnance to the law of gravity, and not in conformity to any of those particular laws which operate as so many exceptions to that general law. Be it so: it cannot be brought under any of these particular laws. But, supposing these to be the only particular laws, or say causes of motion, as yet known,—can you take it upon you to pronounce it impossible there should be any others? The steam-engine, as a source of power, is but a century and a half old: the Edition: current; Page: [86] knowledge of electricity, as to the great bulk of its effects, not so much as a century: galvanism, but of yesterday:—till the other day there were but six primary planets moving round our sun; now there are eleven. Are new primum mobiles less possible than new planets?

I answer:—As to the discovery of new causes of action—causes apparently distinct from, and not referable to, any of those above enumerated—I am not disposed to regard it as in any degree improbable. Yet, as to any causes adequate to the production of any such effect as the effect in question,—in the discoveries just spoken of there is not anything that would prevent me from regarding it as being, in the sense above determined, practically impossible. Why? Because it appears to me practically impossible, that, after so long a course of physical experience and experiment, any primum mobile, of a force adequate to the production of an effect of such magnitude, can have remained undetected. As to the power of steam, the application of it to any useful purpose is not so old as a century and a half; but the existence of it as a source of motion could never have been altogether a secret to any one who ever boiled a pot with a cover to it.*

II. Facts disconformable in degree.

Of facts impossible in degree (meaning always Edition: current; Page: [87] by impossible, such as would generally be accounted so,) the exemplifications that might be given are innumerable. These consist in deviations from the ordinary quantities: deviations extending to such a degree, as on that account to be regarded as incredible.

Let us take those which regard the manner of being of the human species:—

1. Extent of human stature.

2. Quantity of human force.

3. Duration of human life.

4. Duration of life without food.

5. Time of gestation.

6. Number of children at a birth.

Various are the grounds on which facts having, like the above, the human species for their subject, present a claim to preference. Being more interesting than any others, they are more open to observation, and more likely to attract it: and they are wont, on a variety of occasions, some of them more than others, to come in question on judicial occasions: in particular, time of gestation, and duration of life without food; but most of all the former, legitimacy or illegitimacy depending upon it.

Of the six examples thus taken for the purpose of illustration, two admit of deviations at both sides; viz. extent of stature, and time of gestation. In the other cases, there is no room for deviation but on the side of increase: the minimum being in the ordinary course of nature.

In relation to facts objected to as incredible in consideration of the magnitude of the degree in which they deviate from the ordinary course of nature, erroneous judgment on the part of the judge seems rather more to be apprehended in disaffirmance of the supposed incredible facts, than in affirmance. Why? Because, in most instances of facts, the credibility of which is liable to come in question in judicature, the judge (especially supposing him a man of a mind cultivated in a degree at all approaching to what befits a man in such a situation) will naturally be more or less apprized what is the ordinary course of nature: but, of the known deviations—of the degrees of deviation known by men possessed of appropriate information in the line in question—it may well happen to him to be very imperfectly, if at all, apprized. If, then, without having recourse to scientific evidence (viz. to such as applies in particular to the species of fact in question,) he takes upon him to decide in disaffirmance of the fact, error on his part may be but too naturally the consequence.

Take, for instance, the question,—Of what length of time passed without food, the patient surviving, may the existence be regarded as credible?

Anno 1753, at the Old Bailey, London, Elizabeth Canning was convicted of perjury. Of the mendacity of her testimony, the whole evidence taken together, I have not the smallest doubt. But one part of it consisted in an affirmation on her part of her having passed a certain length of time almost without food. In the course of the history of that cause, several persons, it appears, regarded the extraordinariness of this supposed fact as sufficient to render it incredible. This judgment I should not expect to find confirmed by the opinion of well-informed scientific witnesses. Why? Because at different times I remember reading different accounts of the protraction of animal, and in particular human life, without food, for much greater lengths of time—accounts that did not appear on the face of them to present any suspicious circumstances.

In the list of cases above exhibited, there are few (if any) in which it might not happen, in one way or other, to come into question in the course of judicature; and this without having recourse to wagers, by means of which, if legalized, there is no sort of fact whatever that may not be made to call for the decision of a judge.

1. Duration of life. Titius is nominee in a life-annuity, or sends to put in a claim of property in a distant country. The age of Titius Edition: current; Page: [88] is 170, 160, 150. Parr is said to have passed his 151st year, Jenkyns his 169th. But the judge either has never heard of the reputed age of Jenkyns or of Parr, or disbelieves it. In some periodical print an article appeared some years ago, stating as still in existence a man who had passed the age of 180.

2. Duration of the time of gestation. This is a question of no very unfrequent occurrence, and (in respect of the legitimacy of children, and the honour of parents) of the utmost practical importance. There are well-attested instances of women whose pregnancy has continued ten, eleven, or even twelve months. In the case of a pregnancy protracted for the term of ten months, a rash judge, too decided to suffer the exhibition of scientific evidence on this point, might do a cruel injustice.

3. Number of children at a birth. Of three children born at the same time, of the same mother, the existence (suppose) has been put out of doubt by other evidence. Comes another person, claiming property on the ground of succession, and says, “My mother had four children at a birth, and I am one of them.” “Four at a birth!” says the judge: “that I never can believe; three I can believe, for I have known instances of it. I will not hear your evidence.” Five at a birth I remember reading of in newspapers, with individualization of names, times, and places.

4. Number of children born of one woman. The like precipitation is capable of taking place in this case as in the last preceding one. Between thirty and forty, I am clear that I have read of.

5. Duration of fecundity in women. Delivery some years after seventy, I think I have read of. An estate is claimed on behalf of a child, whose mother, it is alleged and confessed, when she was delivered of him, was turned of sixty. “No,” says our rash judge; “the fact is impossible: it is needless to hear evidence.”

But such rashness—such irrational refusal to hear evidence—is it to be supposed?—Alas! the rashness here supposed as credible on the part of this or that individual judge, is nothing in comparison to the rashness which continues to be exemplified to this day, in the most enlightened countries, by the whole fraternity of judges.

In regard to facts devious in degree, it is impossible to fix upon any point of the scale, as being the point which separates the incredible degree from the credible. At a large distance above the ordinary or mean level, to a person determined to take the distance large enough, there will commonly be no difficulty. But begin with the most devious degree allowed to have been exemplified,—propose the next degree, and then the next; scarce any man that will not find himself perplexed, and even in an inextricable degree, to say at what degree credibility ends, incredibility begins:—1. Stature. A man a hundred feet high, incredible. But nine feet? In London, nominal nine feet has been exhibited, to make allowance for exaggeration, say eight feet. But, eight feet being certain, shall eight feet and an inch be incredible? The credibility of eight feet and an inch being admitted, add an inch more, and so on without end.—2. Force. No man living who is capable of lifting upon his shoulders a fat and full-grown ox of the largest breed; few men who would not have been able to deal in that same way by that same animal when just born. Take any man, and propose it to him, or to any one else, to say, at what age of the animal, or at what precise weight in pounds and ounces, the man’s power of lifting him will cease.—3. Fecundity at a birth, or total. According to the legend, in consequence of the imprecation of a beggar woman, the Countess of Desmond had as many children as there are days in a year: whether at one or more births, I cannot take upon me to recollect. A delivery of five at a birth has been mentioned, with all the circumstances, within these few years, in the English journals. Taking this number for certain, will six be incredible? Thus we get on, one by one, till we come to the Countess of Desmond’s number: only, the more there are of them, the smaller they must be.

A treatise on the deviations from the ordinary course of nature has been spoken of as a necessary part of an encyclopedical system, by Bacon. In the synoptical table prefixed to the first French Encyclopedia, the mention of it has been revived by D’Alembert. Of a treatise on this subject, the fundamental part would consist of a statement of the alleged facts. In regard to such facts as are more particularly apt to come in question in a court of judicature—such, above all, on the belief or disbelief of which (as in some of the above examples) the property and honour of families may depend,—might it not be of use that arrangements should be taken by governments for their authentication and registration? At present, the credit of facts of this description rests, in general, on no firmer foundation, than that of a paragraph in this or that periodical publication. And who can say but that it may sometimes happen that a false fact of this description shall have been inserted, in the view of its being, on an individual occasion, employed in evidence? In the character of the best and only evidence which the nature of the case admits of, the paragraph may or may not be listened to by the judge. But,—though it should not be admitted in a direct way,—in an indirect and circuitous way it may, nevertheless, operate in the character of evidence. Edition: current; Page: [89] The judge will, at any rate, not refuse to hear scientific evidence;—but the opinion of the witness is drawn (for from what better source can it be drawn?) from this or that paragraph, which he has read in a newspaper, with or without the faculty of recollecting the source from whence he took it.

III. Facts disconformable in specie.

When, on a survey of the catalogue of incredible, or supposed incredible, facts, we come to the class of those which, if incredible, are so on this ground; and when, accordingly, on this ground, we set about the task of drawing the line between the credible and the incredible,—we find ourselves on an ocean without a compass, and that ocean without bounds. By what consideration can any bounds be set to the modifications of matter?—to the modifications that may have been exemplified in this place, in that place, or in any place? Take any one of the species of men, spoken of as existing, by Pliny or Mandeville,—who shall say but that, in some place or other, at some time or other, that species may have existed?—who shall say that in no place whatever, at no time whatever, the existence of such species would be other than absolutely incredible?

By anatomists, some of them, if examined, might perhaps be found to involve physiological incompatibilities; but such incompatibilities will not be unapt to be too hastily assumed. Angels are painted by adding goose’s wings—devils by adding bat’s wings—to an ordinarily-shaped human body. Judging from birds, an anatomist may pronounce the use of such an appendage incompatible with such a shape. Yes: supposing no greater quantity of muscular force capable of being exerted by a given quantity of matter than what is exerted by men or birds: but what will he say of fleas?

At this moment I have before me a copy of the book known to antiquaries by the name of the “Nuremberg Chronicle.” This work contains, in a folio volume in the Latin language, the history and geography of the known world, printed in that city in the years 1492 and 1493; exhibited at the same time to the corporeal as well as to the mental eye, by a multitudinous series of graphical representations, taken from wooden plates. Amongst these are cuts of twenty-one devious species of men, or as we should say, monstrosities, from Pliny and other authors.* Some of them appear to involve incompatibilities of the anatomical kind, as above. Others have actually been exemplified—some nearly, some ever strictly; the cyclops eye; the horns, the redundant arms and hands. In these instarces, however, the exemplification has not been known to extend beyond the individual. But species, are they anything but individuals multiplied? In the case of the porcupine man, the deviation would naturally at first be thought confined to the individual; but it was found to extend to the race.

Gulliver, upon his return from Lilliput, consigned, as he tells us, to Greenwich Park some of the neat bulls and cows of that country. Till he read on to the account of this source of permanent real evidence, which converted his doubts into belief, I forget what bishop, mentioned by Swift and others, was induced to regard the whole history as a fable. At the Leverian Museum, full-grown neat cattle, much about that size, were to be seen in glass cases.

Among the Nuremberg-Chronicle men, are to be seen the cranes, with their classical enemies the pigmies, the prototypes of the Lilliputians. Is not the incredibility of the Lilliputians lessened, more or less, by the Leverian buffaloes? The relative incredibility, I think, beyond dispute. The relative incredibility; that is, our propensity to regard the existence of such a race in that light. But the absolute incredibility, the impossibility,—how can that be affected by the analogy in question, or any other?—the absolute incredibility, supposing any determinate idea to be capable of being found, to annex to the expression; a discovery which, to my view, does not, I must confess, present itself as easy to make.

The fact being given,—the incredibility of it—the relative incredibility, is lessened by remoteness in respect of place. The propensity to disbelieve is, certainly. By what cause? The imagination would probably be found to bear a considerable part in the production of the effect; but neither is reason without her share. The more remote the country, the less explored. Had races of Cyclops, of horned men, of many-handed men, of pigmies, existed in England, could they have thus long remained undiscovered? So far as this consideration operates, the relative incredibility of these and other devious varieties of the human species would evidently be much less in the interior of New Holland, than in Old England.

Antecedently to the importation of the kangaroo, and the two species of ornithorynchi, suppose a paragraph in a newspaper, speaking of an animal of any one of those descriptions as found in a wood in England:—the first propensity would have been, to regard the statement as fabulous or incorrect; the next, to take for granted that the animal had been imported from some distant country, and had by accident got loose.

From remoteness in point of place, analogy conducts us naturally to remoteness in point of time. On this ground, imagination and Edition: current; Page: [90] reason act in opposite directions: the imagination, to diminish the incredibility (meaning always the relative)—reason, to increase it. In time as in place, as the scene grows more and more remote, to the mind’s eye it is more and more obscure. Ghosts, devils, vampires, hobgoblins of all sorts, may exist in darkness; in the light, we see clearly there are no such things.

Reason does not in this case diminish the incredibility, as in the former. When the first impulse given by the imagination is resisted, it seems difficult to say why, in the case of an alleged fact devious in specie, the incredibility of it should be lessened by this cause. As far back as history, supported by sources of permanent real evidence (skeletons, statues, sculptured portraits, drawings, pictures, or human works,) goes, can any material difference be found between our predecessors and ourselves?

On the other hand, so far as the incredibility of any devious fact depends upon the causes of untrustworthiness, the increase which it receives from remoteness in point of time is abundantly notorious. In the track of experience and civilization, the further back we go, the greater the proportion of incorrectness as well as mendacity, the greater the ratio of fable to history, till at last it is all pure fable. In distant times, histories melt at last into fables, as, in distant plains, hills do into clouds. It is with the infancy of the species, as with the infancy of the individual: dreams mix themselves with realities.

In effect, remote times are virtually present to us in remote places. The different generations of mankind, at their different stages of civilization, are at once present to our eyes. We may view our ancestors in our antipodes. In Japan, sorcerers are still seen riding in the clouds. In Negroland, witchcraft is even now the most common of all crimes. Half a century is scarce past since Hungary has been cleared of vampires.

Yet, even in time as in place, experience forbids our regarding the present as cast in exactly the same mould with the remote. If New Holland has presented us with its kangaroos and ornithorynchi, Cuvier and others have presented us with their parallels in the extinct inhabitants of an antediluviar world,

In this line of investigation, as in others, errors concerning past times might, in a practical work like the present, pass unnoticed, if the application of them confined itself to past times. The misfortune is, that, when facts, mischievous as well as fabulous, have, under favour of the clouds of the morning, been planted in past times, they are apt to be transplanted into present, there to take root, and yield a poisonous increase. If Blackstone refuses a part of his credence (for it is but a part) to modern witches, it is because they are not old enough. A few years more over their head, and then his faith in them becomes entire. A little while, and the imagination of some successor or pupil of the departed sage may beget upon the ghost of the witch of Endor a succession of modern witches, and then comes the reign of terror again, if not of blood: for the conspicuous sufferings that have been produced by witchcraft at the foot of the fatal tree, or in the water, or in the fire, are as nothing in comparison with the horrors which it has planted in the pillow, and in the chair which, but for them, would have been an easy one. How much better directed has been the zeal of those enlightened divines, who, to conquer peace for flesh and blood (reflecting that the accident of being bound up with history does not give truth to fables,) have made war upon the sorceress, and devoted to annihilation that queen of terrors. Has not Farmer, in the same generous view, converted demoniacs into madmen? and did not Priestley, to the same end, and in a sense peculiar to himself, wrestle with the prince of darkness?

Nature makes her mock of those systems of tacties, which human industry presents as leading-strings to human weakness. In so far as difference in specie is constituted by difference in proportion, which is as much as to say difference in degree, this latter division of devious facts must be confessed to coincide with the former. The existence of pigmies and Lilliputians being incredible, is it so in the character of a fact devious in specie, or devious only in degree? Dwarfs are devious in degree only, and without difficulty. Why? Because, the race being the same, the difference is, in the botanical sense, only a variety. But dwarfs, it is believed, may be found, not above four times the height of Lilliputians, and much less superior in height to pigmies than inferior to ordinary men.

At the worst, imperfect order is better than total chaos. Amidst so thick a darkness, the faintest light is not altogether without its use.

[Further remarks by the Editor.

After an attentive consideration of the characters by which Mr. Bentham endeavours to distinguish his three classes from one another, the reader will probably join with me in reducing these three classes to two;—viz. 1. Facts repugnant to the course of nature so far as known to us; and 2 Facts merely deviating from it: or (to express the same meaning in more precise language) 1. Facts contrary to experience; 2. Facts not conformable to experience.

The discovery of a new species of animal, presents a specimen of a fact not conformable to experience. The discovery (were such a Edition: current; Page: [91] thing possible) of an animal belonging to any of the already known species, but unsusceptible of death or decay, would be a fact contrary to experience.

This distinction was pointed out by Hume;* but, having pointed it out, he knew not how to apply it: and the misapplication which it seemed to me that he had made of it, led me at first sight to imagine that there was no foundation for the distinction itself. Having, however, by further reflection, satisfied myself of its reality, I will attempt, if possible, to make my conception of it intelligible to the reader.

All that our senses tell us of the universe, consists of certain phenomena, with their sequences. These sequences, that is to say, the different orders in which different phenomena succeed one another, have been discovered to be invariable. If they were not so—if, for example, that food, the reception of which into the stomach was yesterday followed by health, cheerfulness, and strength, were, if taken to-day, succeeded by weakness, disease, and death—the human race, it is evident, would have long ago become extinct. Those sequences, then, which are observed to recur constantly, compose what is termed the order of nature: and any one such sequence is, by rather an inappropriate metapher, styled a law of nature.

When a new discovery is made in the natural world, it may be either by the disruption of an old sequence, or by the discovery of a new one. It may be discovered, that the phenomenon A, which was imagined to be in all cases followed by the phenomenon B, is, in certain cases, not followed by it; or it may be discovered that the phenomenon C is followed by a phenomenon D, which till now, was not known to fellow it.

In the former case, the newly-discovered fact is contrary to experience; in the latter case, it is merely not conformable to it. In the first case, it is repugnant to what had been imagined to be the order of nature; in the second case, it merely deviates from it.

The first time that the sensitive plant was discovered, its characteristic property was a fact not conformable to experience. A new sequence was discovered; but no sequence was broken asunder: the plant had not been known to possess this property, but neither had it been known not to possess it, not having been known at all.

But if a stone projected into the air were, without any perceptible cause, to remain suspended, instead of falling to the ground,—here would be not merely a new sequence, but the disruption of an old one: a phenomenon (projection of a stone into the air) which, from past experience, had been supposed to be universally followed by another phenomenon (the fall of the stone,) is found, in the case in question, not to be so followed. Here, then, is a fact contrary to experience.

The error, then (as it appears to me,) of Hume, did not consist in making the distinction between facts contrary, and facts not conformable, to experience; it consisted in imagining, that, although events not conformable to experience may properly be believed, events contrary to experience cannot. That an event is not fit to be credited which supposes the non-universality of a sequence previously considered to be universal, is so far from being true, that the most important of all discoveries in physics have been those whereby what were before imagined to be universal laws of nature, have been proved to be subject to exception. Take Mr. Bentham’s own list (pp. 84, 85) of the exceptions to the law of gravitation: suppose all these unknown, the law might have been supposed universal, and the exceptions, when discovered, would have been so many violations of it: but do not these exceptions, with the exceptions again to them, and so on, compose by far the most valuable part of physical science?]

§ 6.: The improbability of a fact, relatively to a particular individual, depends upon the degree of his acquaintance with the course of nature.

The improbability of any alleged fact consists in its deviation from the established, and (as supposed) unvaried and invariable, course of nature.

Of what nature?—Of irrational nature, or rational,—of the nature of things, or of men,—according to the nature of the alleged fact deposed to: according as it is a mere physical event, or a human act, the result of the operation of a human mind. According as the fact belongs to the one or the other class, the description of the improbability will admit of correspondent differences.

Does the fact exhibit any such deviation? If yes, in what degree? considerable enough, or not, to preponderate over the force of such testimony as the case presents? What, in respect of the supposed fact in question, is the unvaried and invariable course of nature? Immediately or ultimately, it is from the opinion of the judge, determined by the knowledge of the judge, that the answer to these questions, and the decision grounded on it, must come.

It must always be borne in mind that probability and improbability are not, in strictness, qualities of nature; they are qualities attributed to supposed natural facts in the way of fiction, for the convenience of discourse—attributed to the facts themselves, in consideration of the persuasion entertained Edition: current; Page: [92] concerning them in the mind of him by whom they are spoken of in this point of view. The alleged fact,—is it, in his view of the matter, completely unconformable to the ordinary course of nature? he sets it down as improbable in the highest degree: or, in other words, as impossible. Is it in a less degree unconformable? he sets it down as simply improbable, and not altogether impossible: and so downwards, till the improbability presents itself as productive of no other degree of negative persuasion than what is capable of being subdued and made to give way to positive affirmation, by the force of such affirmative evidence as the case affords.

The improbability being thus recognised to be purely relative—relative on each occasion to the idiosyncrasy of the individual by whom the fact in question is set down as improbable,—it is easy to see, that in this point of view, the probability or improbability of the fact will depend upon the degree of relative knowledge possessed by the individual judge; and thence upon the degree attainable, and generally attained, in the age, and country, and rank, in respect of mental cultivation, in which he is placed. A fact which, in Paphlagonia or Palestine, might, in the Augustan age, not have been too improbable to be established by testimony, in the estimation of the most knowing minds of those respective countries, might have presented itself as impossible to the same class of minds at Rome or Athens at that same time. A fact which in that same age might not have been incapable of establishing itself in the character of a probable one at Rome or Athens, even in that highest class of minds, might at this time be rejected as improbable by minds of the same class in Paris or London. A fact which would be established by a given force of testimony without a dissentient voice in the minds of the highest class at Tombuctoo, and without many dissentient voices in minds of the same class in Constantinople, might find nothing but incredulity in minds of equal relative superiority in London or Paris. Even in our own times, and within the hearing of Bow bells, Stockwell or Cock-lane might, on the strength of hearsay evidence, afford a temporary credence to a fact to which no force of immediate testimony would be able to afford so much as a momentary credence in St. Stephen’s chapel.

By the relative credibility or incredibility of a fact, I understand the chance it has of being believed or disbelieved by a given person.

The relative incredibility, as regards a particular person, of an anti-physical fact—a fact amounting to a violation of a law of nature—will be in proportion to his acquaintance with the laws of nature. Suppose a person altogether unacquainted with the laws of nature, yet not altogether unaccustomed to hold converse with mankind: he would, upon the credit of a bare assertion, uttered by any person of his acquaintance, give credit to one fact as readily as to another; to the most flagrantly anti-physical fact, as well as to the most common fact; to a fact the most devious and extraordinary in degree or species, as well as to the most ordinary fact; to the existence of a ghost or a devil, as well as to that of a man; to the existence of a man sixty feet, or no more than six inches, high, as well as to that of a man of six feet; to the existence of a nation of cyclops, with but one eye each, and that in the middle of the forehead, as well as to the existence of a nation with two eyes in their ordinary place.

In this respect, all nations as well as all men are children for a time. Among savages, not to speak of barbarians, the mental state cannot be regarded but as a state to which this supposition is in a great degree applicable.

What is there that would not be believed in a nation in which it was generally understood—so generally as to be a position acted upon by law, that guilt or innocence, mendacity or veracity, was to be determined by a man’s walking blindfold hurt or unhurt in a maze of red-hot ploughshares?

Of a given apparently anti-physical fact, the relative incredibility will be apt to increase, not only with a man’s acquaintance with the laws of nature, but with his acquaintance with the history—the correspondent part of the history, of the human mind; with the observations he has had occasion to make of the extreme frequency of incorrectness and mendacity among mankind, or rather of the extreme rarity of the opposite phenomena; of the extreme frequency of the instances in which either the one or the other has been reduced to certainty, sometimes by irreconcilable contradictions, as between divers reports of the same transaction—sometimes by self-contradiction on the part of each.

In the case of an apparently anti-physical fact reported by a writer or a number of writers in a distant period.—to render it more credible that he should either have been a deceiver or deceived, than that the fact was true, it is not necessary that it should appear that he was acted upon by this or that particular cause of delusion, or that he had this or that point to gain, this or that specific advantage to reap, from the lie. All men are, occasionally, exposed to seduction in this way, to the temptation of swerving from the truth, by all sorts of motives. True it is, that in this case there are two suppositions to make, for one that there is in the other. But, take each of these suppositions,—what can be more probable?

Go back to distant ages, we shall find men of the very first reputation for sagacity, for Edition: current; Page: [93] insight into the human heart, very imperfectly apprized (to appearance at least) of the causes of untrustworthiness to which extra-judicial testimony is exposed. Speaking of the two miraculous cures ascribed to the Emperor Vespasian, “Utrumque” (says Tacitus) “qui interfuere, nunc quoque memorant, postquam nullum mendacio pretium.” “By persons who were privy to the two transactions, both are still related, now that” (understand, by the extinction of that emperor’s family) “mendacity has no longer any reward to hope for.” No reward to hope for! As if punishment was not a still more irresistible principle of seduction than reward! as if forfeiture of reputation, of reputation for veracity, were no punishment!

By Tacitus, both these miracles were believed. The remark could have had no other object than to communicate that persuasion to his readers. Unless his intention was to deceive, he was himself deceived.

In England, miracles of the same kind, but prodigiously greater in number, and beyond comparison better attested, were believed—within these hundred years very generally believed; and now, perhaps (anno 1826) not by a single human being—not even by any of the multitudes that still believe in witches and apparitions. It was among the attributes of the Stuart dynasty, to cure their subjects of the species of scrofula called the king’s evil. A piece of coined gold being touched by the monarch for the purpose, the patient wore it thereafter by a string upon his neck; for which purpose a hole was pierced in it. By family inheritance, I have three of these pieces still by me. It was not by the vision of a god—the god Serapis—that so many beneficent monarchs were determined to exercise, for the benefit of their subjects, this healing power; it was by the experience of ages. Under James I. the practice began, or at least existed, with the 17th century; under Anne, it continued for the first fourteen years of the 18th:—omitting the reprobate Charles and the usurping William, all of them monarchs of exemplary faith and piety. Would sovereigns such as these have lent a hand to an imposture?*

Thus it is, that, in many instances, improbability is relative: the same fact is at once probable and improbable—probable to some persons improbable to others; and this without any necessary imputation, on either side, on the judgment of those by whom such opposite decisions are pronounced.

Ignorance, though perhaps more exposed to erroneous judgments on the side of belief, is by no means unexposed to erroneous judgments on the side of disbelief;† inasmuch as the analogies by which extraordinary incidents are brought within the sphere of probability, are, in proportion to the degree of their ignorance, apt to be without the compass of their knowledge.

The less extensive a man’s acquaintance is with the ordinary course of nature, the greater is the number of those facts, which by him are not seen and understood to be within the ordinary course of nature—facts which, in his view of the matter, belong to the predicament of extraordinary things. The greater, therefore, is the number of those things which, being to him extraordinary things, are by others reported, and by him (as occasion presents them to his observation) found and proved, to be true.

Supposed facts, which, besides being to him extraordinary, are really out of the course of nature, and not only so, but actually untrue, are by him neither seen nor suspected to be untrue. Why not? Because, by their being extraordinary to him, little cause is presented for suspecting them to be untrue: for many facts which to him are extraordinary, are by the general consent of those with whom he is acquainted held to be, and upon trial found to be, true. Nor, by their being really out of the ordinary course of nature, are they presented to him as being in a proportionable degree, if in any degree, improbable: for with the extraordinary course of nature, as distinct from the ordinary, he has little or no acquaintance.

Suppose a Turk, of the ordinary class of Turks in point of education, to have been told of the elevation of a number of persons in the air, and of the aërial voyage performed by them; and this by a bare statement of the fact so far as above described, and without any indication given of the cause by which the elevation was produced. Probably enough, neither disbelief, nor so much as any considerable surprise, would in his mind have been the result. To his disposition to give credence to this, or any other fact of the extraordinary class, no great addition could probably remain to be made by occular demonstration. Whatever fact of this description could be related to him, would be rendered sufficiently credible by a word, whatever it be, of which in English the words magic or sorcery serve for representatives. Edition: current; Page: [94] By the Turks, Christians are considered either as being in general magicians, workers of wonders, or, at least, as abounding in magicians: and by magic, one thing may be done as well as another. The contents of the machine by which this wonder was achieved, were in fact composed of rarefied air:—had this account of it been given to him, would he have credited it? Not unlikely; and so would he, as likely, had they been represented to him as composed of lead. To a people to whom the face of nature is not visible through any other medium than that of the Koran, one fact is not more unconformable to the course of nature than another.

When an air-balloon, on the hydrogen gas principle, performed for the first time, at St. Petersburg, an aërial voyage,—certain Japanese, who having been shipwrecked somewhere in Kamschatka, had from thence been conveyed to Petersburg, were of the number of the spectators. All the rest were wrapped up in amazement: the Japanese alone remained unaffected. A Russian noticing their unconcern, and asking for the cause of it,—“Oh!” said a Japanese, “this is nothing but magic; and in Japan we have practitioners in magic in abundance.”

In the long-established empire of Japan, it is probable, as in the long-established and neighbouring empire of China, they have jugglers, whose art consists in the production of whatsoever phenomena seem most unconformable to the known course of nature. In England, as well as in other superiorly-informed nations, such appearances are exhibited by jugglers, as it requires a better acquaintance with the course of nature than falls to the lot of the bulk of the people, to distinguish from impossibilities; and in China, the art of juggling, having been longer in use than in any European country, appears, by the instances given by travellers, to have been carried, in some particulars, to a still higher degree of perfection than anywhere in Europe.

The art of travelling in the air being referred to jugglery, and considered as no more than a particular branch of that commonly-practised art, all cause of wonder was at an end.

In the character of a faithful picture of real life, the Arabian Nights’ Entertainments, to an Arabian understanding, are upon a par with other histories: and if in some points they differ from histories strictly and properly so called, it is only in the same respect as Robinson Crusoe differs from actual biography: though not actually true, they contain nothing but what might have been true; and if, in any instance, they are not to be believed to be true, it is only because, upon a close inspection, it may be found that they are not given for such.

The author being, in the autumn of 1785, on board a Turkish vessel, on a voyage from Smyrna to Constantinople, a storm arose in the sea of Marmora, which made us glad to take refuge in a port on the Asiatic side, called Kiemed, where the first object we saw, as soon as we could see anything, was the wreck of a vessel just driven on shore within a stone’s throw of us.

There being several Franks of us on board, the master of the vessel, through the medium of an interpreter, examined us all for the purpose of knowing whether any such article as a fragment of an Egyptiam mummy existed in the possession of any of us; and if so, whether we could favour him with a sight of it. The answer having been universally in the negative,—when the storm was over, it was observed to us by the interpreter, that our deficiency in this curious article was, perhaps, a fortunate circumstance for us; mummy being among the implements known to be employed by Christians in the practice of divers magical arts, and, amongst others, of the art of raising storms: whereupon, had any such article been found in our possession, it would have been matter of consideration, as a means of abating the fury of the storm, whether to be satisfied with throwing overboard the magical implement, or to throw over the magicians along with it.

The theoretical principle being established on the ground of notoriety, the practical inferences seemed to follow from it consistently enough. If, by a piece of a dead body, preserved in a particular manner, and introduced on board a ship, a storm could be raised,—what more natural than that, by throwing it out of the ship the storm should be appeased? The cause taken away, the effect will follow. Moreover, if, upon the removal of the supposed cause, the effect should not follow—if, after this magical implement had been thrown overboard, the storm should continue unappeased,—the continuance of it would be a proof that the cause of the storm, if removed in part, was not removed completely: it would be a sign that, along with this known implement, the magician was in possession of some other implement or implements, not equally known, but equally well adapted for the purpose of raising storms: and, under the difficulty of ascertaining what were the other implements by the help of which the magician might be enabled to fulfil his wicked purpose, the surest course was to rid the ship of the magician himself, which done, his tools, were they ever so numerous, would do no mischief.

Be this as it may, the sagacious Turk might have placed his argument on ground absolutely impregnable, by calling in to his aid the principle of the Scotch philosopher. I have a propensity, he might have said, to believe Edition: current; Page: [95] whatever I hear, probable or improbable: and this propensity is innate; for who can tell me when it first began to show itself? But being innate, it is not derived from experience; and being older than experience, it is stronger than experience; nor, therefore can any argument drawn from probability or improbability stand against it: for an argument drawn from probability or improbability rests on no other basis than that of experience; and when experience, or anything that rests upon it, is encountered by the opposing pressure of the pre-established propensity, which it is that must yield, is manifest enough.*

The better acquainted we are with the course, the ordinary course, of nature, the better qualified we are, of course, for judging whether a given fact be conformable or unconformable to it.

As between credulity and incredulity, belief of false facts and disbelief of true ones, the former will naturally present itself as being, in the greatest plenty, the fruit of ignorance. It certainly is so, in so far as ignorance is accompanied with the consiousness of its own existence. Such consciousness is a natural, and perhaps predominantly frequent, accompaniment of ignorance; but it is by no means an inseparable one. Much will depend upon the opportunities a man has of being witness of the proofs of a degree of knowledge superior to his own. Much will also depend upon the particular temper and cast of mind of individuals!

Carrying with them the productions of European arts, the voyagers that from time to time have, within the two or three last centuries, visited the newly-discovered parts of this our globe, have in general found the inhabitants well enough disposed to give credit to their visiters for reported wonders, on the strength of the wonders presented to their eyes: but this facility of credence has not been altogether without its exceptions. The case of the King of Siam is old enough to have been noted and commented upon by Locke.† When, in reporting the state of things in their own country, the Dutchmen who visited his dominions came to speak of the frozen scenes presented by their winters—water hardened to such a degree as to bear men and waggons like dry land,—a laugh of scorn was the reply, and they were set down for impostors.

At that time of day, the advances made in natural science were as yet but inconsiderable; and the strangers by whom the wonder was reported, were, perhaps, not much more than upon a par with his Siamese majesty, in respect of their advances in the career of science; or, at any rate, were not provided with any ready means of displaying any proofs of their superiority in his view. The fact was not conformable to the course of nature, in any such state of things as his opportunities of observation had presented to his view. He had, therefore, the same reason for disbelieving that fact, as we have for disbelieving facts which, by thousands and thousands that could be mentioned, a European, instructed or not instructed in the rudiments of physical science, would, at this time of day, be disposed to reject as incredible at the first word.

In London itself, that great metropolis which disputes with Paris the title of metropolis of the scientific world, his Siamese majesty found, within the compass of my own experience, a not unworthy representative in the person of an English physician. At that time, about twenty years or thereabouts had elapsed since the publication of the first experiment by which mercury, by the help of the Russian ice, had been exhibited in a solid state. In company with the learned doctor, I happened, on I forget what occasion, to make allusion to this experiment. With an air of authority, that age is not unapt to assume in its intercourse with youth, be pronounced the history to be a lie, and such a one as a man ought to take shame to himself for presuming to bring to view in any other character.

Solidity, liquidity, and gaseosity, appear now for some time to have been considered, in natural philosophy, as the three states, of which, by combination with an appropriate portion of caloric, bodies in general, such as we are acquainted with, may be regarded as susceptible: insomuch that,—although instances, and those pretty numerous, are not wanting, in which this or that modification of matter has not as yet been seen assuming, or made to assume, this or that one of the three states,—yet its being presented, though for the first time, in such hitherto unknown state, would no more be regarded as repugnant to any law of nature, or as an instance of an incredible deviation from the ordinary course of nature, than the existence of water in the state of ice or steam.

One of the most interesting remains of Grecian antiquity, is the narrative which Lucian (who, though not the most ingenious, may be set down as by far the wisest among the Grecian philosophers)—Lucian, an eyewitness, has left us, of the pranks played by the impostor Alexander: a sort of Sidrophel in a higher sphere, who, upon the strength of a worm enclosed in an egg-shell, a tame real snake, and the head of an artificial one, set up for a prophet and prime minister of the god Æsculapius. Had any man paid a visit to Lucian, and said to him, “Yesterday I saw Alexander, with his serpent-god, sailing in the air in a boat, and mounting up to heaven, Edition: current; Page: [96] taking with him a globe of not less than thirty feet diameter—saw him and watched him till his approach to the seat of Jupiter had rendered him invisible—what would have been the reception given by the philosopher to his informant? Probably, much the same that the King of Siam gave to the story of the solid water, and the English physician to the lie about the solid quicksilver. But suppose, the next day, Lucian himself had been witness to the ascent of Æsculapius, with his favourite, to his native heaven?—he would either have been a convert to the godhead of the serpent, and the divine mission of the prophet Alexander, or have borrowed some such term as magic as a cover to his obstinacy; to a disbelief for which he would not have been able to have given any tolerable reasons.

A fact which, when viewed through the medium of a man’s actual stock of physical science (for even the New Hollanders are not without some,) presents itself as rendered incredible by its non-conformity to the known course of nature, may (if his mind be open to reasoning, and passion do not shut the door) be rendered credible to him, by showing its conformity to this or that fact, rendered for the purpose present to his observation, or which, though not altogether foreign to his memory, had not happened to present itself in that point of view. Neither the frigorific saline mixtures we are acquainted with—nor ether, which, by the promptness of its evaporation, stands in lieu of all—could at that time have been exhibited to the King of Siam by his Batavian visitants. But a handful of nitre, which, being disolved in boiling water, had been converted in appearance into its aqueous solvent, might, on its cooling, have been made to exhibit to the eyes of the incredulous monarch the transformation of the liquid into that semi-transparent stone which, in the regions of the north, affords natural bridges capable of conveying the heaviest elephants over extensive rivers. Or—unless in the climate of Siam there be something, which there does not seem likely to be, to prevent the success of an experiment which in Bengal is so commodiously subservient to wholesome luxury—a set of porous and shallow earthen pans, with, or perhaps without, an artificial current of air, might, without any extraneous additament, have sufficed for converting, in any moderate quantity that could be required, the fable into fact.

Not quite so easy might have been the task of him who should have had to reconcile the facetious philosopher of Greece to the evidence of his senses. The favourite fluid (he might have said) of Minerva, rides triumphant and unsullied upon the element of Neptune. When, from the summit of Ida, a pine is rolled down and precipitated into the waves, it not only rides upon the water, but communicates its buoyancy to the hands that severed it from the parent earth. What the oil or the wood is to the water, an air which you are not yet acquainted with, but which nature prepares already in great quantities, is to the air in which we move and breathe. Inclose this light air in a bag of sufficient size, it will carry up, as you see, not the bag only, but boats, and men, and gods, along with it; exactly as the pine, when by the force of the fall it has been driven to the bottom of the lake, rises by its own levity, and would still rise, though men and other heavy bodies were attached to it. It is not that the new air is devoid of weight, any more than the old air, by the impulse of which vessels are drawn by design along the surface, and by accident to the bottom of the waters; but—the lighter air not being so obedient to the unknown power by which the effect we call weight is produced—the lighter air, which, were it alone, would cling to the earth, is drawn off from it by its more powerful antagonist, carrying with it its receptacle, and the burdens you see attached to it.

Would this analogy have satisfied the scoffing philosopher, or would nothing less have satisfied him than the setting up a manufacture of hydrogen gas before his eyes? This would have depended upon his particular frame of mind, upon the humour he happened to be in, and more or less, perhaps, upon the state of his quarrel with the imposter whose pranks he has detailed to us in so agreeable a narrative.

Opinions, recognised at present among the enlightened classes in enlightened nations as being unsupported by fact, and in opposition to those laws of nature which have been built on fact, have been erected into what may be styled so many false and spurious laws of nature. From these spurious laws, evidence, which on account of the extraordinariness of it would be deemed false, by reason of the circumstantial scientific evidence opposed to it by the science of the age and country, may derive, and in many instances has derived, but too effectual a support. At no time have even the most enlightened classes been altogether exempt from the delusion spread by such spurious laws of nature. The station of a judge, how high soever it may rank in the scale of mental illumination, has at no time been everywhere sufficient to exempt a man from false persuasions, grounded on the false laws of nature above spoken of.

Among these so unhappily prolific opinions, the most conspicuous and persuasive (not to say the only ones) are those which have had the religious sanction for their support. The persuasion generated has been produced, not by any facts by which the opinion has been seen to be supported, but by a persuasion of Edition: current; Page: [97] a very different sort; viz. that he in whose breast the principal persuasion in question should fail of being produced, would, by reason of such failure, be consigned to inconceivable and endless tortures.

If a clear line could be drawn, and were actually drawn, between time and time, insomuch that the dominion of these spurious laws of nature were understood to be confined to time long since past, the real law of nature reigning with undisputed dominion in time present and to come,—the error might not, in this point of view, be attended with any pernicious consequences in practice. But by no man has any satisfactory or so much as plausible reason been ever given, why any such line should be thought capable of being drawn anywhere; much less has it been shown that, for any precise and satisfactory reason, it should be understood to have been drawn at this or that precise point of time.

Things being thus circumstanced,—opinions enunciative of false laws of nature, opinions that have received their birth at some widely-distant point of time, have, in times little anterior to the present, been productive of judicial decisions, by which much mischief has been done, and a degree of alarm propagated through the community, such as could not have been spread by the most atrocious crimes. It has been the effect of such opinions, not only to give support to the false evidence which would otherwise find itself resisted, and with effect, by the circumstantial scientific evidence of the age and country, but even to give birth in the first instance to such false evidence.

In the seventeenth century, Urbain Grandier, for having employed devils to take possession of certain nuns at Loudun, and enable him to take possession of them for carnal purposes, was roasted alive by a slow fire, after having undergone other tortures. Of this catastrophe, the immediate authors were certain corrupted magistrates and corrupted witnesses of that time: but the original authors were the devils who, in a distant age and country, were cast into the herd of swine; together with so many others who, in that age and nation, found, in such abundance, such easy entrance into the human breast.

In England, not many years afterwards, Sir Mathew Hale, a judge of even proverbial probity—a judge superior to all corruption, but not superior to delusion, if the belief in witchcraft be delusion,—hanged an individual for witchcraft: by the assistance of a jury, whose delusion had probably not waited for his, but, at any rate, was confirmed by it. Of this catastrophe, the immediate authors were the judge and jury, and the either corrupted or deluded witnesses of that place and time; but the original author was the witch of Endor, and those predecessors of hers in the same profession, for whose punishment a law had been inserted into the Mosaic code.

The general evidence applied by scientific information to the direct evidence of particular extraordinary facts, is not always necessarily and without exception (though it is most apt to be) on the negative side, in opposition to such direct evidence. Direct evidence, the truth of which is rendered suspicious by this circumstance—viz. that the fact reported by it would, if true, be a violation of some acknowledged law of nature—may be exempted from suspicion, by showing that it is in conformity to some other less extensive law of nature, which operates, as it were, as an exception to that which is more extensive. By magnetism, by electricity, by chemical attraction, by galvanism, by expansion and contraction, produced by the action of caloric on bodies, in their several states of solidity, liquidity, and gaseosity, motions are produced in a direction opposite to that in which the body in question is drawn by the more extensive law of gravitation. Of the attraction of gravity, some sort of conception must have been entertained in every, the rudest age; but in the ancient world, even in its most enlightened period, the conception entertained of this universal property of all matter was but imperfect, and was not expressed by any sufficiently comprehensive name. Of the other laws, which, as just mentioned, stand as it were as so many exceptions to that more general law, scarce any conception was in those days entertained: of the laws of magnetic, in particular, and electrical and galvanic motion, none whatever. In the museum at Oxford may be seen (or at least might once be seen) a natural magnet, by which a mass of iron, weighing 1,200 lbs., is or was kept suspended. At the lectures there delivered on natural philosophy, might at the same time be seen an exhibition which, I suppose, is commonly enough repeated in other such lectures—a plate of gold kept suspended for some moments in a state of absolute rest, by the antagonising forces of gravitation and electricity. Of late, in presence of numerous companies, different parts of a dead body have received, from the so recently discovered power of galvanism, motions opposing and overpowering the action of gravity.

In our own times and country, scarce a journeyman or a milliner’s apprentice in a country town, to whom these particular and recently-discovered laws of nature are altogether unknown. Even to these inferior ranks, a fact of any of the classes above exemplified would therefore, at present, be as far from appearing improbable, as the fact of a stone’s falling to the ground after being Edition: current; Page: [98] dropt or projected from the hand. By a person now sitting in the station of a judge, even though he were selected from no higher rank in the scale of illumination, these facts would, any of them, be received upon any, the slightest, evidence. In the age of Lucian, had Lucian sat as judge, and any of these facts been exhibited to him in evidence, without any previous explanation,—Lucian, notwithstanding all his knowledge and sagacity, or rather by reason of that very knowledge and sagacity, could never have failed to reject it as incredible.

Facts, then, which were true, have been rejected, and with reason rejected, as improbable. When a fact presents itself as improbable, does this experience afford any reason for crediting it as if it were true? Nothing like it. Disbelieving improbable things, we shall deceive ourselves once; believing them, we shall deceive ourselves nine hundred and ninety-nine times. Deceived we shall be, not unfrequently, do what we can: all that is left for us to aim at, is, so to order our judgment that the number of instances in which we are deceived shall be as small as possible.

Of eleven witnesses exhibited before a court of justice, and possessing, as far as appears, equal title to credit, ten may perjure themselves, and the remaining one may speak truth. In this case, if the judge gives credit to the ten witnesses, misdecision will be the consequence. But does it therefore follow that, cæteris paribus, ten witnesses are not to be believed in preference to one?

In practice, no difficulty is found in believing one fact, and disbelieving, at the same time, another, though both of them standing on the ground of the same evidence. Propensity leads to such distinctions; judgment reports the reasonableness of them.

In the Nuremberg Chronicle, two facts are reported in the same breath: one (that of the armies fighting in the atmosphere,) to which, at present, no well-informed mind will afford—the other (that of the stones falling from the same region,) to which none will refuse—its belief. Why this difference? The reason is obvious and convincing. The fact disbelieved is a fact unconformable to the known course of nature: and to such a degree unconformable, that, the better a man is acquainted with the ordinary course of nature, and the more close the attention which in this view he pays to it, the more strongly he will be persuaded that the reporter or reporters (be they who they may) were either deceived or deceivers, rather than that such a fact should have been true. The fact believed, is a fact conformable to the course of nature: in former times not known to be so, but of late years ascertained to be so by a multitude of examples, many of which have undergone the most attentive and most scientific scrutiny.

§ 7: Improbability is a particular case of counter-evidence.

The case of improbability or impossibility, on the part of the fact, the existence of which is asserted by the testimony delivered in the first instance, will, when closely looked into, be seen to coincide with the case of counter-evidence.

Improbability is constituted by a mass of evidence of a mixed, and in a considerable degree subtle and recondite, nature—an article of circumstantial evidence deduced in the way of inference, out of an immense mass of direct evidence.

Improbability or impossibility consists (it has been seen) in the inference deduced from a supposed disconformity, more or less wide, on the part of the affirmed fact in question, as compared with the ordinary and known course of nature.

The direct evidence, from which this inference of the non-existence of the affirmed fact is deduced, is composed of the several supposed reports or relations (added to the several supposed perceptions of the deposing witness himself) whereby the existence of the several supposed analogous facts of which the course of nature in this behalf is composed, has been supposed to be affirmed.

Operating thus in the way of counter-evidence with relation to the fact affirmed, this immense and in a manner infinite mass of direct evidence may, for distinction’s sake, be termed general counter-evidence: the other evidence antecedently designated by the appellation of counter-evidence, being at the same time named special counter-evidence.*

Certain facts are considered as disaffirmed, certain negative facts in infinite multitude are considered as affirmed, by the perceptions and reports (extra-judicial reports indeed) of mankind in general, without any known exception: and from all these facts put together, in the character of evidentiary facts, the non-existence of the individual fact in question in the character of principal fact is inferred.

Thus, supposing, down to the time in question (say the year 1763,) the greatest length Edition: current; Page: [99] of way known, within the bounds of the country called England, to have been travelled by any one man in the compass of twenty-four hours, to have been 150 miles:—the existence of a man in a spot 200 miles distant from the spot in which the act in question is known to have been committed, and that within twenty-four hours of the time at which it is known to have been committed, will be sufficient to render the fact of his having been the person who committed it, to a certain degree improbable.*

Of all the instances of dispatch on journeys that ever came within my observation (here we have perception,) and of all that I ever heard of (here we have an indefinite mass of evidence, extra-judicially indeed, not judicially delivered evidence,) none ever exceeded 150 miles within the twenty-four hours. Here, if the witnesses are to be believed, we have a rate of dispatch equal to 200 miles in twenty-four hours. The supposed fact thus affirmed, is, therefore, out of the ordinary and known course of nature: and so widely distant from it, as to be improbable: and so great is the improbability, that, notwithstanding the affirmative testimony of the witnesses for the prosecution, the fact of their being either mendacious or under a mistake seems the less improbable fact of the two. My decision, therefore, is, that the criminal act charged upon this man was not committed by him.—Such, in the case in question, if developed at length, would be the language of the judge (under English law the jury) by whom, in the case in question, the fact affirmed by the first-delivered evidence was, on the ground of its improbability, disbelieved.

To illustrate the nature and effect of improbability in the character of an article of circumstantial evidence, opposed to, and adduced in disaffirmance of, the existence of the fact, which, howsoever affirmed by testimony, is thus charged with being improbable,—I will bring to view three examples: the case of water brought by cold into the state of ice; the case of air-balloons; and the case of stones falling upon the earth from immeasurable heights in the atmosphere.

A circumstance by which these examples are rendered all of them the more instructive, is, that, in every one of these instances, the fact that was or might have been rationally and properly objected to as improbable, was nevertheless, and is now, universally acknowledged to be true.

The case of the water and the ice, as reported by Locke, has already been brought to view†. In Siam, water is never in that state. The position of the country is in the torrid zone, and there is no elevation in it anywhere, of sufficient height to produce the degree of cold necessary to surmount in that respect the effect of exposure to the sun’s heat. Admitted to the presence of the monarch of that country, an ambassador from Holland, in describing the state of things in his own, incidentally found occasion to speak of ice—of water reduced to that state, in masses of such thickness as to bear men and carriages. At this point of the narrative he was stopped. “What you have been saying till now,” said his Majesty, “may be true: but by this I am satisfied you are false. Water turned into stone! was ever any such thing, or anything like it, seen or heard of?”

The monarch was perfectly in the right. Water turned into stone, he had never either seen or heard of. Liars be had seen, as many as he had seen men. To him the supposed fact was altogether unconformable to the course of nature, much more so than any instance of mendacity: to us it is altogether conformable. In his eyes, it opposed an insuperable bar to the probative force of the testimony: in ours it would have opposed none.

Was he, then, in his situation, condemned to give everlasting discredit to facts thus indubitably true? By no means. Supposing his understanding powerful enough to comprehend the force of analogy, the conversion of water from a liquid to a solid state by the abstraction of heat might have been shown to be conformable to facts in abundance, that either already had been, or easily might have been, brought within the reach of his own experience—of his own perceptions.

When an asserted fact is disbelieved as improbable,—the ground of its rejection, the efficient cause of the persuasion by which the existence of it is disaffirmed, is the notion of its being unconformable to the ordinary course of nature. Show that there is no such disconformity, the improbability is removed altogether. Show that the disconformity is not so wide as it had appeared to be, the improbability is diminished: the diminution is more or less considerable, according as the Edition: current; Page: [100] analogous facts brought to view to show the conformity are more or less numerous, and, in the instance of each, the analogy more or less close.

In the eyes of the King of Siam, the improbability of the conversion of water from a liquid into a solid might have been diminished, by indicating to him the case of metallic substances. In the furnace of the founder, the gold with which your palace is decorated is in a state of liquidity, like that of the water in which your barges float: when, being removed from the fire, it becomes comparatively cold, it resumes then a state of solidity, like that which, during one part of the year, water resumes so regularly in our canals.

By this one example, the improbability might, in the monarch’s eyes, at any rate, have been lessened. As to the degree in which it would have been lessened, that would have depended on the cast of his mind, and his opportunities of information.*

The improbability might have been still further diminished, had the medical chest of the ambassador’s physician happened to be furnished with a corresponding pair of those saline substances which, being separately dissolved in water, present each of them the appearance of water, but immediately on being mixed together constitute a solid and to all appearance a stony mass; the redundant water of the one being absorbed in crystallization by the other:—supposing always, that, while the chest of the medical man supplied the substances themselves, his mind furnished him, at that early period, with the knowledge of the properties, which, on this occasion, required to be displayed.

In the case of the air-balloons, no particular instance, in which, for any length of time, the fact of their ascension found any person to disbelieve it, ever happened to fall within my knowledge. The unbelievers, if any, were from the first more likely to be found among the uninitiated, than among the initiated in the physical branch of science. The rarefaction and levity which is the long-known result of increase of temperature,—this, added to the known possibility of abstracting from an inclosed space the whole weight of the air that would have been contained in it, were sufficient to reduce very much, if not to remove altogether, the improbability of the fact in the first instance. The discovery of a gas which, under an elasticity and power of resistance equal to that of common air, possessed no more than from a tenth to a fifteenth part of its weight, brought it not long after within that class of facts, which oppose not in any degree the objection of improbability to the testimony of him by whom they are related as having fallen within the compass of his perceptions.

The case of the stones that, of late years, have, in so many well-attested instances, been stated to have fallen in different parts of the world from the sky upon the earth, at too great a distance from the nearest volcano to have had any such earthly seat of explosions for their source, brings to my own recollection the feelings which, at different times, reports to that effect presented to my mind. The Nuremberg Chronicle was the first source of information by which a fact, or supposed fact, of this kind, was presented to my notice. Among the wonders exhibited by graphical representation in this work, is a shower of stones, which, on a day therein recorded, is mentioned as having fallen upon the earth’s surface.† On a glance bestowed, which was all that seemed worth bestowing, on the point in question, with the few words that served for the explanation of it, the stones were set down in my own mind as having being the missiles employed by the combatants in one of those pairs of armies whose combats in the air used at that time of day to be so frequent.‡

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A general recollection remains with me of having read, many years ago, in one of the London newspapers, a paragraph, stating a stone, or a number of stones, to have fallen from the clouds in England, at some place remote from the metropolis: I think it was in Yorkshire. This was the first instance that had met my observation, of an occurrence of this kind, related as having taken place at a point of time near to that of its publication. A statement published in a London newspaper, with mention of time and place, exposed thereby to immediate scrutiny and contradiction, presented a very different claim to attention from any that could be presented by the production of a barbarous age, in which facts possibly true, and facts unquestionably false, were intermixed in every page.

Is it true, this story—or is it not? is the question I remember putting to myself. That it is altogether false (was the answer,) is more than I could take upon myself to pronounce with full assurance. My acquaintance with the several branches of science concerned, is not such as to afford sufficient warrant for any such peremptory conclusion. But, within the time of scientific scrutiny, this is the first report of the kind that ever met my observation: whereas, in the periodical publications of the day, statements more or less erroneous occur every day, and erroneous reports, relative to facts lying within the division of physical science, are not unfrequent. If, therefore, I were obliged to lay a wager, with liberty to choose my side, it would be on the negative side; and on that side I should be content to lay considerable odds.

By the comparative degree of intelligence prevailing in modern times, the range of the species of evidence here in question has been considerably reduced: the question now is,—not whether, upon the credit of this or that article of human testimony, the existence of a fact confessedly out of the ordinary course of nature shall be believed,—but rather, whether, of the fact said to exist, the existence would be out of, or (what comes to the same thing) repugnant to, the ordinary course of nature.

When credit was given to the existence of witchcraft,* sorcerers, and ghosts, and judicial decisions were grounded on evidence attesting or supposing the existence of such facts, the question concerning the intrinsic probability of such facts was a question of great frequency, and of the highest practical importance. In those times of terror, women were punished, and always with death, for acts of witchcraft; men for acts of sorcery; human creatures of both sexes for being possessed, or causing others to be possessed by devils: all were punished, or might have been punished, for all sorts of crimes, on the supposed evidence of ghosts.†

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If ever it should happen that a man should be in danger of suffering punishment, or injustice in any other shape, on the credit of any such supposition, it would then be necessary to enter into a serious comparison of the two counter-forces: the improbability of the alleged supernatural fact, on the one hand; on the other hand, the probative force of the testimony on which the probability of the existence of these supernatural facts rested. Happily, in the present state of the public mind, this danger does not present itself as being seriously formidable. On the last occasion on which the notion of a ghost presented itself upon the judicial stage, his existence was not brought to view in the character of a subject-matter of proof or argument; but his non-existence (I should have said, her non-existence—for it was a female ghost) was assumed, and the assertors of it considered as having, by the assumption of that character, subjected themselves to legal punishment.

At present, the prevailing impression seems to be, that no fact, of a nature confessedly supernatural, is to be believed on the credit of human testimony; or, at any rate, of any such mass of human testimony as hath ever found itself outweighed by a preponderant mass of counter-testimony (composed, to wit, of an assemblage of witnesses superior in number and value taken together) in any court of justice.

While this mode of thinking (if I am correct in considering it as prevalent) continues in force,—as often as the topic of impossibility, or improbability approaching to impossibility, is introduced, the question will be,—Supposing (for argument’s sake) the existence of the alleged fact, would it be a supernatural one? or, in other words, a violation of any known law of nature? If it would, it is admitted on all hands that the fact (that is, the allegation whereby the existence of it is asserted) is not true: but my proposition is, that, however extraordinary it may appear, it does not import the violation of any law of nature. There is nothing, therefore, to prevent it from being believed on the credit of special human testimony: and, in particular, of such testimony as on my side has been adduced. Such, at this time of day, is the language of the party on whose side an article of testimony has been adduced, the probative force of which is on the other side encountered by the objection grounded on the intrinsic improbability of the alleged fact.

The same progress of intelligence, by which the mind of the judge is rendered better able to defend itself against any deceptions that might be attempted to be put upon it by false evidence brought forward in support of impossible or improbable facts, operates as a bar to prevent the bringing forward of such facts, and preserves his judicial faculties from being exposed to the attempt. Numerous as are the instances in which the discernment of the judge is put to the trial by false evidence, by evidence of false facts—facts which to the stain of falsehood add the characters of physical improbability, are seldom found of the number. It is not at present as in the days of magic and witchcraft, when the extraordinariness of the fact (so it did but derive its characters from that source) would, instead of diminishing, serve but to increase, its chance of being believed. False witnesses, in the planning of their tales of falsehood, take care to render them not unconformable in any respect, but, on the contrary, in all respects as conformable as possible, to what is understood to be the ordinary course of nature. When all is done that can be done to varnish the false tale, is the taint of improbability still visible in it?—the counter-evidence opposed to it, is little in danger of operating with less than its due weight. The reign of religious impostures, I mean impostures grounding their prospects of success on notions derived from religion, seems, throughout the field of scientific civilization, or (which happens to be the same thing) of Christendom, pretty well at an end. Judges are nowhere prepared to give credence to them; and, this being understood, suitors are as little prepared to hazard them. When, in the last century, the Cock-lane ghost afforded entertainment to an English court of justice, it did not present itself spontaneously—it was dragged into the light of day by persons who called down the hand of avenging justice upon the lying ape that gave it birth.

§ 8.: An objection answered.

On a loose and hasty survey, the case of impossibility or improbability—of intrinsic impossibility or improbability on the part of the supposed fact in question—might be apt to present itself in a different point of view from that in which it has been above exhibited; in a point of view in which the objection to the fact might be apt to appear not to belong to the head of circumstantial evidence, but to be constituted by a body of distinct evidence brought forward on the other side. This conception is accordingly in a manner implied in the import of the term Edition: current; Page: [103]intrinsic, applied as above: it may seem implied in the words impossibility and improbability, even when taken by themselves. Impossibility, it may be said, is a property that may with propriety be ascribed to the fact itself. Look at it by itself—every one sees it at first glance to be impossible. Look at it in this point of view, you see it by itself: what you do see is the single fact in question: but, seeing this, what other facts do you see? what other facts do you look for? what other facts have you need to look for? Absolutely none.

This view of the matter is what seems likely enough to be entertained; it being presented to the mind, and in a manner warranted, by the turn of the language which, on the occasion in question, is commonly employed. Upon closer examination, however, the propriety of it will vanish: it will be seen that the nature of the case indispensably requires that other facts should be taken into the account: in which case, such other facts, not being brought forward by any direct testimony, or other evidence, cannot but come under the head of circumstantial evidence.

Take one of the vulgar cases of witchcraft,—at present in civilized countries a ludicrous one—in most Christian countries not very long ago, in some parts of some such countries perhaps even now, but too serious a one. An old man, or (to take the more common case) an old woman, travelling, at pleasure, with prodigious velocity, and in every direction, through the air, without any assistance at all for the journey, or none better than what may be supposed to be afforded by a broomstick:—Do you believe it? No. Why? Because it is impossible: it is a fact in itself impossible. Are you in your senses? you will say so too. Would you have us go out of the subject, call in other facts, and attempt to reason about it? The very attempt to reason would be an irrational one.

The firmness of my persuasion on the subject can hardly be exceeded by any that could be entertained by a person, who, speaking of it, should employ such language as is above. But as to the source of that persuasion, upon examining it, I do not find it quite so simple. Were a fact of the description in question to be reported to me, I should regard it as not true. For what reasons? Because (not to look out for any mere repugnancies) it stands in contradiction, for example, to two physical laws. One is, that no body ever changes its place without some specific cause of motion:* another is, that, even when exposed to the action of any such specific cause of motion, no body suffers any such change of place, unless the force of such specific cause be in a degree sufficient to overcome the impediment opposed by the attraction of gravity.

Such are the two laws in question: but, in alleging (as I do for shortness) the existence of these two ideal, and as they might be termed verbal, laws, what is it that I allege in substance? In truth nothing more, in either case, than an assemblage (though that an immensely multitudinous one) of facts agreeing with each other in a certain point of view—with which facts the extraordinary phenomenon in question is seen to be unconformable. All bodies that I know anything of, tend towards the centre of the earth. By what consideration is it, that I am led to form a proposition so general and exclusive? By these which follow. Every motion I make or experience, every minute of time I sit or stand without any considerable motion, every motion I feel or see on the part of other bodies, concurs in giving me a confirmation of the truth of it, so far as depends upon the evidence of my own senses. Do I apply for further information to the presumed experience and observation—to the actual relation and declaration, of other individuals, my fellow-creatures?—the information runs constantly, and without any the least exception, in the same strain. Oral evidence and written evidence—men and books—books touching on this particular subject directly and professedly—books touching on it incidentally and collaterally,—all concur in giving evidence on the same side. All this body of information, all this immense and continually accumulating body of information, may at any time, so far as it were worth while to pursue the thread of analysis, be resolved into so many distinct articles of evidence, ranged under the heads of distinction already exhibited in this work.

After all, what does it amount to? Not any direct evidence disaffirming the existence of the supposed magic journey. What then? So many articles of circumstantial evidence: neither more nor less. But this circumstantial evidence, this supposed disaffirming evidence (it may again be asked,)—how does it disprove the truth of the supposed affirmative evidence? In no other individual instance was motion ever produced without a distinct assignable cause, referable to some one or other of the enumerated heads—in no other individual instance was the force of gravity ever overcome by a force less considerable than its own: to come to the point at once, in no other individual instance was an old woman ever carried through the air, either without any assisting instrument, or with an instrument of no greater degree of appropriate efficacy than a broomstick, by the exertions either of her own volition, or by the exertions of the volition of any other being (such, for example, as a devil,) applying itself to her bodily faculties for that purpose.

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But, from the non-existence of any such extraordinarily produced motions in those instances, numerous as they are, how does it follow that no such motions have been produced in this instance? In none of those instances has there been any direct evidence affirming the existence of such extraordinarily produced motions. But in this instance such affirmative evidence does exist. Continue then to disbelieve the existence of such extraordinarily produced motions in those several instances; but think not, from their non-existence in those instances, to prove their non-existence, much less their impossibility, in this. Think not that, because their existence is not to be believed without evidence, therefore their existence can be reasonably disbelieved against evidence.

I should not expect to find in the person of any reader of these pages, an individual in whose mind a persuasion of the existence of any such aërial journey would, by the above train of reasoning, be produced. On the other hand, neither do I see how it is possible to contest the truth of it, so far as concerns the position it rests upon,—to wit, that all the argument that is adduced, or can be adduced, in disproof of such supposed fact, amounts to no more than this observation, viz. the want of consistency, conformity, agreement, analogy (take what word we will, it makes no difference,) between this extraordinary supposed fact, and the other ordinary facts above brought to view, of the truth of which we have been sufficiently persuaded by direct evidence. Yet upon no stronger nor other ground than this disconformity, we scruple not to disbelieve such extraordinary facts; and that with so firm a degree of persuasion, as without difficulty, and almost without thought, to pronounce them to be impossible.

So far, so good: but this propensity in our minds, does it alter, does it influence in any respect, the nature of the facts themselves? By disbelieving the existence, past, present, or future, of any fact whatsoever, is it in our power to destroy, to annihilate, its existence? to cause a fact never to have existed, for example, that in truth has existed? Unquestionably not. Most certainly, not any influence on the existence of the facts themselves can be exercised by the opinion such beings as we entertain of their existence. Yet, after all, when we come to inquire what is the nature of the effects which any such disconformity (or rather our observation of the existence of such disconformity, which is all we have of it,) is capable of producing,—the answer is, a disposition on our part to disbelieve the existence of the supposed extraordinary fact: a tendency in our own minds, not any tendency in the facts themselves.

Thus much indeed may be added, viz. that so often as a man in his proceedings assumes the falsity of such facts, so often will he, in that respect, act rationally, and find his conclusions warranted by experience: so often as he assumes the truth of them, and acts upon that foundation, so often will he find himself deceived—completely and deplorably deceived. This argument, after all, will, upon a strict scrutiny, appear to amount to nothing: to be in appearance perhaps a distinct and additional argument, but, in truth, so much of it as is true, no more than the same represented over again in another point of view. As to everything that is to come—as to all supposed future results—it is mere surmise, mere opinion, without facts, without evidence; a mere assumption of the matter in dispute. As to all past results, it amounts to no more than the already alleged and admitted disconformity, served up only in another shape.

What, then, is the true reply to the argument in question, supposing it adduced by a believer in witchcraft—adduced for the purpose of weakening our confidence in the proof afforded, by the disconformity in question, of the non-existence of that practice? It is this;—viz. that whatever argument is capable of being brought forward for the purpose of weakening our confidence in the argument indicative of the non-existence of that practice, applies in like manner, but with much greater force, to every argument that can be brought forward in favour of its existence. The travelling of old women, with or without broomsticks, through the air, is that sort of event which even you who affirm the existence of it in this or that particular instance, admit not to be a common one. But the existence of persons who, by any one of a great variety of motives, are impelled, and eventually compelled, to exhibit relations of facts, ordinary as well as extraordinary, which, on examination, prove not to be true, is a fact unhappily but too often verified. The action of old women in the character of witches, is a fact which, according to your own statement, has happened but now and then, at this or that particular time and place; but the action of men and women, old and young, with brooms and without, in the character of liars, is that sort of event which has been happening at all times and in all places of which we have any account. This is so true, that a wager (for though a wager is no direct proof of any fact which is the subject of it, it is, however, a proof of the real confidence of him who joins in it, and a punishment for rash confidence on the part of him who loses it,) in the character of an argument ad hominem at least, a wager on this subject might be brought forward, not altogether without congruity. Show witches on your part, while I on my part show liars, for the space of a term in Westminister Hall, at so Edition: current; Page: [105] many guineas a-head, and see whose purse will be fullest at the end of it.

When I have to choose between believing a common, and believing an uncommon, event, I believe the former, in preference to the latter. Why? Because, in the very words which I make use of, it is implied, that the event called common has hitherto been of more frequent occurrence than the event called uncommon: and to suppose that, having been hitherto more frequent, it will continue to be so, is only to believe, what all experience testifies, that the course of nature is uniform.

The conclusion seems to be, that, in support of a persuasion of the impossibility of any fact, the best and utmost proof which the nature of the case admits of, is the indication of its disconformity with some class of facts indicated by those propositions which, for the convenience of discourse, have been received under the appellation of laws of nature: and that such proof, so given, of such disconformity, may, with propriety, be referred to the head of circumstantial evidence.

Certainty, absolute certainty, is a satisfaction which on every ground of inquiry we are continually grasping at, but which the inexorable nature of things has placed for ever out of our reach. Practical certainty, a degree of assurance sufficient for practice, is a blessing, the attainment of which, as often as it lies in our way to attain it, may be sufficient to console us under the want of any such superfluous and unattainable acquisitions.

§ 9.: Untrustworthiness of the evidence by which facts disconformable to the course of nature have been attempted to be proved.

The accreditation of anti-physical or supernatural facts is by no means a matter of indifference to justice;—even of facts which, with relation to the fact upon the carpet, have no other circumstance in common than their being (on the supposition of their truth) supernatural facts. Every such fact, if admitted for true, opens the door for the admission of every other: it establishes the precedent: it establishes this generally applicable proposition, viz. that repugnancy to the obvious laws of nature is no bar to credibility. Give credit to any one instance of witchcraft,—with what consistency or reason can you, on the mere ground of natural incredibility, refuse to give credit to any other?

Such being the tendency of credit given to supernatural facts—such the mischievous influence of supernatural facts, in themselves indifferent and innoxious,—it may be not unuseful to bring to view such considerations as tend to diminish the credibility of anti-physical facts in the lump.

I. No fact of this class was ever established by that sort of evidence which, under the best system of procedure in respect to evidence, is considered as the best evidence, extracted in the best manner; and which, though termed the best sort, is not to be considered as an extraordinary sort, but the sort which is ordinarily required and obtained in ordinary cases.

II. Accordingly, anti-physical facts are seldom represented anywhere—never in the face of justice—as having manifested themselves in the presence of divers persons at the same time.

In the instance of ghosts and apparitions, this has already been matter of general observation. Why so?

1. A persuasion of this sort has in many instances been sincere—the consequence of delusion. In the instance of a celebrated author of Berlin,* to whom we are indebted for a most curious and instructive account of his own case, the appearance was the result of bodily indisposition; and the unreality of the existence of a correspondent external object known by the patient at the time. The apparition appears not to two persons at once. Why? Because two persons are not subject to the same indisposition, bodily or mental, manifesting itself in the same manner, at the same time.

2. Where the reported perception has not had delusion, but self-conscious mendacity, for its cause, it has never happened that two persons have concurred in the utterance of such report, on any judicial,† or solemn—though extra-judicial, occasion. Why? Because of the extreme and manifest difficulty of carrying through any such plan of imposition with success. Subjected to examination, they could not hope to escape contradicting themselves, as well as one another. Accordingly, when a man embarks in a plan of this kind, he chooses the company and the occasion, and takes care not to expose his tale to contradiction, designed or undesigned, from a confederate.

III. The anti-physical facts thus reported are never of the permanent, but always of the evanescent, kind.

Why? Because, were they of the permanent kind, the production of the object constituting the material source of the real evidence would of course be called for: nor could credence be expected, unless it were produced. This case, when looked nearly into, is found resolvable into the preceding one. Why? Because, supposing the source of evidence produced, and the evidence extracted from it, under the eye of the judge, the anti-physical fact manifests itself in the presence of divers persons at once.

If, in any instance, the exhibition of the anti-physical fact in the presence of divers persons has been undertaken or attempted, it has been in the way of legerdemain and imposture. Edition: current; Page: [106] What, then, is legerdemain? It is the apparent violation of some law or laws of nature; the circumstances which, if known, would show that no such violation existed, being concealed.

Upon this view of the matter, it should seem that those who maintain, in the character of a universal proposition, the non-existence of such physical facts as above described, may safely and even consistently admit their existence, in the event of their being deposed to by a considerable number of unexceptionable witnesses, some or all of them of good character, their testimony being extracted by a judicial examination, conducted with competent ability, in the best mode.

That the evidence should be extracted in the best mode, is a condition altogether essential. For, if you will accept of a bad mode—of a mode which English judges, knowing the best, and the value of the best, accept of, not only in preference, but to the exclusion of the best,—you may prove witchcraft, in the manner in which witchcraft has been proved, and conclusively, to the destruction of the defendant, in any quantity you please. In the closet of a judge or other person having mercy or destruction in his power, you may transform old women into witches by confession, in any number that you please; and, by taking upon yourself the wording of the confession, leaving nothing to do to the witch besides the signing with her mark, you save her so much trouble. Of course, you will not in this case fall into any such inconsistency as that of calling for the personal evidence to be corroborated (as in other cases) by real evidence; that is, of the permanent kind, as above.

In the case of a fact in regard to which its apparent anti-physicality, its apparent incompatibility with the laws of nature, operates as a disprobative circumstance,—the probative force of the evidence on the other side—the probative force of the testimony deposing in affirmance of the fact—is, on various occasions, apt to be subjected to diminution from the same cause. In determining whether any degree of credence ought to be given to an apparently anti-physical fact, regard must be had not only to the circumstantial evidence afforded by its apparent anti-physicality, but also to the probability of seductive motives acting upon the witnesses by whom the fact is affirmed.

Various are the occasions on which, by the inordinate and seductive influence of this or that species of motive, men are led to represent as true, facts which if they were true would be anti-physical, but which are not true. Various are the classes of anti-physical facts, to the truth of which men are, on those occasions, led to depose. Coupling together the nature of the fact and the nature of the occasion, I proceed to bring to view some of the principal instances in which this cause of deception has been observed to operate.

In all these several cases, it may be of use here to premise that the seductive power of the species of motive in question, applying as it were to two different quarters of the mind at once, the understanding and the will, operates upon it with a double influence. What is not true, it prompts a man to regard as true; and what is neither true, nor so much as by him regarded as being so, it prompts him to report as if it were true.

I. Facts promising wealth. Transmutation of less valuable metals into gold. Seductive motive, in the character of a cause of delusion applying to the understanding of the person addressed—the person to whom the report is made,—the love of the matter of wealth. Seductive motive applying to the understanding of the original reporter (the supposed operator) in case of delusion (simple incorrectness, without mendacity,)—the same; also, the pleasure of curiosity, the pleasure of reputation, and of the power attending it. Seductive motive applying, in case of mendacity, to the will,—love of the matter of wealth; viz. the wealth to be gained by the sale of the false secret.

Transmutation of a less valuable metal into gold, is in itself neither more nor less credible—a fact neither more nor less anti-physical, nor devious in specie*—than transmutation of gold into a less valuable metal. Yet, the probative force of a testimony asserting the transmutation of another metal into gold, would be less than that of a testimony asserting the reverse. Why? Because the aggregate force of the seductive motives above mentioned is so much greater in the latter case than in the former. In the latter case, the most powerful of all, the desire of wealth does not apply.

II. Cure of diseases by supposed inadequate means. Seductive motives applying in the character of a cause of delusion to the understanding of the person addressed,—aversion Edition: current; Page: [107] to the pains of sickness: love of life. Seductive motive applying, in the case of delusion to the understanding of the original reporter (the supposed operator,)—the same as in the case of the transmutation of metals. Seductive motive applying, in the case of mendacity, to his will,—the same as in the case of delusion.

In this case, the fact of the cure of the disease in question by the operation of the supposed remedy in question, is one of seven contending facts, of all which the comparative probability requires to be weighed.

1. No real, or at least such, disease: the symptoms really existing, but the result of the imagination.

2. No real disease: the symptoms mendaciously reported.

3. The disease cured, but by the mere influence of the imagination, not by the operation of the supposed remedy,—or by some other remedy.

4. The disease gone off of itself: cured, without the assistance of the imagination, by the unknown healing power of nature, or by the cessation of the action of the morbific cause.

5. The disease not completely cured, i. e. not ultimately cured, but the symptoms mollified or removed for a time; viz. by either of the two preceding causes, Nos. 3 and 4.

6. The disease not cured in any degree: the cessation of the symptoms being falsely reported, whether through delusion or mendacity, and whether on the part of the patient or of the medical practitioner.

7. Or, lastly, the disease cured, and by the operation of the supposed remedy.

Of the delusive influence of the imagination, exemplifications may be found in the choice made formerly of medicines. Gold, it was thought, must be a sovereign remedy: and all the efforts of industry were employed to make it potable. A remedy for diseases? Why? Because it was so valuable—because it was so rare. Diamonds are still more valuable: happily they were never employed for the cure of diseases: partly, perhaps, because they were so much more difficult to come at than gold; partly, because there was no hope of rendering them potable.

III. Facts promising happiness, threatening unhappiness, both in the extreme. The fact in question, spoken of as evidentiary of a commission given by a supernatural being to a man, to issue commands to any or all other men; those commands converted into laws, by threats as well as promises; by prediction of pains to be endured in this or a future life, in case of disobedience—of pleasures, in case of obedience. Take even the promises alone, without the threats,—the seductive force is already beyond comparison greater than in the case of the making of gold, or the supernatural cure of diseases: add the threats, it receives a further and prodigiously greater increase.

Prudence suggests and requires the yielding to the probative force of this fact,—the giving credence to it, without staying to inquire into the intrinsic credibility of it—into its coincidence or deviousness, in degree or specie, with reference to the usual course of nature—into its conformity or repugnancy to the obvious laws of nature.

In this way,—by the help of an instrument of seduction which seems to be ready made, courting the hand of whoever has confidence enough to take it up and use it,—any man (it might seem) would have it in his power to impose laws, and those irresistible ones, upon any and every other. Such, accordingly, might have been the result, if the operation had been confined to one person, or if the operators, in whatever number, had agreed among themselves. Happily for human liberty at least (not to speak of happiness and virtue,) no such concord has existed. In different nations, sometimes even in the same nation, legislators seeking to rule men by this instrument have come forward, opposing and combating one another with this instrument, no less decidedly and strenuously than others with the sword. Each has proclaimed to the world,—These of mine are the true wonders; all others—all those others that you hear of, are false: these that I promulgate to you are the genuine commands; all others, all those others that you hear of, are spurious. Divided thus, and opposed to itself, the seductive force, how seldom soever effectually resisted, ceased to be absolutely irresistible.

Such are the motives by which a man may be urged to give credit to untrue facts. But how comes it to be in his power? Such is the force by which the will of man is subdued; but by what means is the understanding itself brought into subjection by the will?

I answer,—Judgment, opinion, persuasion, is in a very considerable degree under the dominion of the will; discourse, declared opinion, altogether. But it is the nature of opinion declared, truly or falsely declared, by one man, to produce real opinion on the part of another.

Judgment in the power of the will? By what means? By these means:—To bestow attention on one consideration, to refuse it to another, is altogether in the power of the will. It is in the power of a judge to hear one man speak in the character of a witness, to refuse to hear another; to hear one paper read in the character of an evidentiary document, to refuse to hear another. The power which, in the station of a judge, a man thus exercises in relation to persons and papers, the mind of every man, sitting in the tribunal established in his own bosom, exercises at pleasure over arguments and ideas: over the Edition: current; Page: [108] contents of evidentiary discourses, in the state in which, through the medium of the perceptive faculty, they have been introduced into the memory. An idea to which a man’s attention refuses itself, is, to every practical purpose, during the continuance of such refusal, as completely excluded, and thence rendered as completely inoperative, as the testimony of a witness, whom, before he has begun to speak, the judge has sent out of court; or a paper which he has disposed of in the same way, before any part of it has been read.*

That discourse of all kinds, more especially discourse declarative of opinion, is completely in the power of the will, is manifest enough. But he who is completely master of men’s discourses, is little less than completely master of men’s opinions. It is by the discourse of A, that the opinion of B is governed, much more than by any reflections of his own. To take upon trust from others (that is, from the discourses of others) his own opinions, is, on by far the greater part of the subjects that come under his cognizance and call upon him in one way or other for his decision, the lot, the inevitable lot, of the wisest and most cautious among mankind: how much more frequently so, that of the ignorant, the rash, the headstrong, the unthinking multitude!

How wicked (it is frequently said)—how absurd and hopeless the enterprise, to make war upon opinions! Alas! would it were as absurd and hopeless, as it is wicked and pernicious! Upon opinions, in an immediate way, yes. To crush the idea in the mind, to act upon it by mechanical pressure or impulse, is not in the power of the sword or of the rod. In an unimmediate, though, for efficacy, not too remote way, through the medium of discourses, no: for what, in the case of opinions (unhappily for mankind) is but too much in the power of the sword and of the rod, is, to crush the enunciating and offending pen or tongue: to cut asunder the muscles by which they are moved.

Unhappily, the power of the will over opinion, through the medium of discourse, is but too well understood by men in power. Meantime, thus much is plain enough: the more credible the facts in themselves are, the less need has a man to seek to gain credence for them by such means. By such means, credit may be given to facts the most absurd, currency to opinions the most pernicious. Facts which are true, opinions which in their influence are beneficial to society, have no need of such support. If this be to be admitted, the consequence seems undeniable. To employ such means for the securing credence to any fact, is to confess its falsehood and absurdity; to employ such means for the support of any opinion, is to confess its erroneousness and mischievousness. To pursue such ends by such means, is to betray, and virtually to confess, the practice of imposture, the consciousness of guilt.

The propensity to give credence to false facts, to give adoption and currency and practical influence to opinions howsoever absurd and pernicious, wheresoever reward or punishment is conceived as annexed, by supernatural and irresistible power, to the operation of giving credence or discredence to any alleged fact, is of itself too strong to need strengthening by any factitious means,—by the application of political rewards or punishments to that same purpose. Ascribe merit to belief,—belief will naturally be upon the look-out for the most difficultly credible facts to attach upon. In the belief of facts which present themselves as true, there can be no merit; since there is no exertion, no opportunity given to any one man to distinguish himself from any other—no opportunity to the Edition: current; Page: [109] most obsequious to distinguish himself from the most refractory. The difficulty (as far as there is any) consists in the giving credence to facts which, of themselves, present themselves as incredible: and the more incredible, the more merit; because without exertion there can be no merit, and the greater the exertion (whatever be the line) the greater the merit, as every man is ready to acknowledge. The more obvious and obtrusive the considerations by which, if attended to, the fact would be shown to be incredible, the greater the exertion necessary to keep them out.

Not that the difficulty, such as it is, is a difficulty which any one need despair or doubt of being able to surmount. It is a contention in which, in proportion to a man’s weakness of mind, he will have the advantage over the strong; in proportion to his ignorance, over the knowing; in proportion to his folly, over the wise; in proportion to his improbity, over the upright.*

It is not wonderful that motives and interests should have the power of producing belief in anti-physical facts; since they are found by experience to have the power of producing belief even in self-contradictory propositions.

Upon the face of the matter, eyes being closed against experience, it would seem that belief in self-contradictory propositions is impossible. On the contrary, it is altogether natural: and so natural as to be very generally exemplified.

It has already been shown in what manner the expectation of reward or punishment, as connected with particular opinions, operates upon the judgment, through the medium of the attention.

When the idea of merit comes to be attached to the act of belief, the degree of merit will naturally be supposed to be in proportion to the difficulty of believing, and the consequent exertion required for the production of belief.

But, to the eyes of an observer, the existence of exertion bestowed on the endeavour to produce belief has no surer test—the intensity of it in the character of an operative cause has no more correct measure—than the magnitude of the opposing forces which must have been overcome ere the effect has been accomplished. And the more repugnant to reason any proposition is, the more powerful are the obstacles which it opposes to any exertions that are made to cause it to be believed: consequently, if the obstacle has been overcome, the more powerful must have been the exertions by which it has been overcome—by which the effect thus aimed at has been produced: and the greater, it is therefore supposed, will be the reward attached to such meritorious exertions. Thus it is, that, the more absurd any proposition is, the greater efforts are naturally made to believe it.

Be the subject what it may, if the proposition proposed for belief be a proposition of the affirmative cast, belief will depend partly upon the probative force of the affirmative evidence, partly upon the weakness of the disaffirmative evidence, or the non-existence of any such evidence: meaning always by existence, relative existence—existence in the place in question—the judicatory in which the cause is heard, and is to be determined.

As to affirmative evidence: in the case here in question, an authority (that is, the opinion, Edition: current; Page: [110] real or pretended, of some other person or persons, whose situation affords a ground more or less strong for supposing them conversant with the subject-matter in question) will always operate with more or less probative force in the character of affirmative evidence. But,—for the exclusion of all disaffirmative evidence, and thence of all disprobative force,—the power of the will, applied in that direction with the degree of exertion required by the nature of the case, will of course suffice. Finding, therefore, no disprobative force to oppose it, the prevalence of the probative force of the affirmative evidence, and the production of the correspondent affirmative persuasion, become alike a matter of course.

The probative force of authority, in the character of evidence, will be, on the one hand, as the plenitude of ascribed knowledge—on the other, as the completeness of self-conscious ignorance.

If, by hope of reward alone, the effect in question (viz. belief) is thus capable of being produced; how much more surely by punishment! an instrument, which, apparent proximity and certainty being the same in both cases, acts with so much superior force. If by either of itself, how much more surely by both together! And if by either at an ordinary degree of apparent magnitude, how much more by both together, each at an infinite apparent magnitude!*

Thus stands the matter in regard to matters of fact in general, and in particular in regard to such as are improbable; these being the only ones (and that in proportion to their improbability) in respect of which there can be any need for applying, in this partial way, Edition: current; Page: [111] the force of the will to the operations of the understanding.

What remains to be shown is, why self-contradictory propositions,—which, when examined as above, are found to be, not improbable propositions concerning matters of fact, but propositions still less fitted to be credited upon rational grounds,—should find so much more easy and extensive evidence than propositions assertive of improbable matters of fact, even such as are so in the highest degree.

The reason seems to be, that, if duly examined, every self-contradictory proposition would be found to be an assemblage of words void of sense—a mass of downright nonsense. But, in proportion to the apparent respectability and trustworthiness of the authority of the instructor, will be the assurance of the pupil, that, from such a source, nothing that is capable of bearing so degrading an appellation can emanate. What, in this case, he will therefore tacitly assume and take for granted, is, that under this veil of apparent nonsense there lies enveloped some exquisite sense, too valuable to be made manifest to eyes so impure and dull as his are.

Issuing, or appearing to issue, from such a source, a proposition of this complexion will thus be upon a footing with a proposition taken from a foreign language, a language with which he has no acquaintance. From an elderly man of good reputation, in the capacity of an instructor, suppose a young pupil to hear delivered, in the character of an uncontrovertible truth, La illah allah, Mohammed resoul allah. To him it would in itself be so much nonsense: to a person acquainted with the Arabic language, if a pious Christian, it would present itself as a blasphemous falsehood—if a pious Mahometan, as a sacred and fundamental truth.

Thus easy is it for a mass of nonsense, by which no matter of fact is in truth asserted, to become the subject-matter of a severe and unshakeable belief: and this for the very reason that it is nonsense.

Compare, in this point of view, this nonsense, with any of those propositions which are enunciative of an intelligible matter of supposed fact, which we have the strongest reason that man can have for believing not to be anywhere realized: such as that of an old woman’s moving in the air at pleasure on a broomstick, or a man’s introducing his body into a quart bottle.

Though, in regard to either of these propositions, we have as full proof of its falsity, as, for the governance of human conduct, a man needs to have,—it is only by a mixture of ignorance and rash confidence, that either of them could be pronounced, in the strict sense of the word impossibility, impossible: since to the production of either of these effects, there needs but the existence of some power in nature with which we are not as yet acquainted.*

True it is, that, in my view of the matter at least, the existence of any such power would be a matter completely disconformable to everything that at present we are acquainted with respecting the established course of nature. Of this so full is my persuasion, that, in the way of wagering, I would, for the value of a shilling, stake upon it, without scruple, everything I possess: but, for the reason above intimated, in the consciousness I feel of my not being in possession of universal science, I find a reason altogether sufficient to prevent me from regarding it as being, in the strict sense of the word impossibility, impossible.

There are two occasions on which the evidence, or argument, indicated by the words impossibility and incredibility, are capable of presenting themselves.

1. On the one side (say that of the demandant,) a fact is deposed to by a witness: on the other side (viz. that of the defendant,) no testimony is adduced, but it is averred that the supposed fact, as thus deposed to, is in its own nature incredible; or, what comes to the same thing, improbable to such a degree as to be incredible. Say, for example, a fact pretended to have taken place in the way of witchcraft: a man lifted up slowly, without any exertion of will on his part, or connexion with any other, from the ground into the air; or an old woman, by an exertion of volition on her part, riding in the air at pleasure on a broomstick.

On the one side (say again that of the demandant,) a fact is deposed to by a witness, as before: on the other hand, it is averred to be impossible—impossible not in its own nature, as before, but for this reason, viz. that the existence of it is incompatible with the existence of another fact, which in this view is deposed to by other evidence: say, the testimony of a superior number of witnesses. The defendant cannot, at the time alleged, have been committing the offence in London; for at that same time he was at York, a place above two hundred miles distant. The instance here given is that which is commonly known by the name of alibi. It supposes the incompatibility of a man’s existing in one place at any given point of time, with the existence of the same man in any other place at the same point of time: or, in other words, of a man’s existing in two places at once.

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[For the purpose of the present inquiry, these two kinds of impossibility are exactly alike. The nature of the impossibility is in both cases the same: in both cases it consists in disconformity to the established course of nature. The difference is, that, in the first of the two cases, there is but one event mentioned, and that event is one which, taken by itself, cannot be true;—in the second case there are two events mentioned, either of which, taken by itself, may be true, but both together cannot.

In the first case, therefore, the impossibility being supposed, we immediately set it down that the testimony of the affirming witnesses is false: in the second place, we have to choose which of the two testimonies we shall disbelieve—that of the witnesses who affirm the one fact, or that of the witnesses who affirm the other fact.

If I am told that, on such a day, at such an hour, John Brown leaped over the moon, I at once reject the assertion as being incredible: this is impossibility of the first kind. If A tells me, that, on such a day, at such an hour, John Brown was in London; and B tells me, that, on the same day, and at the same hour, the same individual was at York; I pronounce with equal readiness that both stories cannot be true: but it remains a question for subsequent consideration, which of them it is that is false: and this is impossibility of the second kind.]*

The plea of alibi, although the fact should be regarded as established by satisfactory evidence, will not always be regarded as conclusively disprobative with regard to the fact to which it is opposed. Why? By reason of the uncertainty that may attach upon the point of time. The identity of the point of time in the two cases being assumed,—let it be proved, that at that time Titius was in the first floor of the house in question, it is thereby proved to be perfectly incredible that, at that same point of time, he should have been in the second floor. But, from the size of a second or third of time, enlarge the temporal seat of the fact to twenty-four hours:—on that supposition, and in that sense of the word time, proof of a man’s having been at London will not disprove the fact of his having been at York at the same time; as in the case of the celebrated flying high wayman.

Hence it is, that, in the case of the plea of alibi,—though, admitting the truth of the evidence in support of it, the incredibility of the fact in the character of a fact incredible in toto never comes into dispute,—this is not the case with it in the character of a fact incredible in degree. If it be satisfactorily proved, that on the 1st of January 1826, at noon, Titius was in the choir of Westminster Abbey,—it is out of dispute, that, on the 1st of January 1826, at noon, he could not have been in the choir of York Minster. But if all that has been proved is, that, on the 2d of January 1826, at noon, Titius was in the choir of Westminster Abbey,—whether, on the 1st of January in the same year, at the same time of the day, he was at York Minster, is not put out of dispute: the fact of his being at York Minster on the said 2d of January, if spoken of in the character of an incredible fact, will not be spoken of as being such in toto, but only in degree. Titius is not said to have been in both places at once: what is said of him now is, that at the one time he was in the one place, at the other time in the other: and the question is, whether the degree of quickness with which he is said to have passed from the one place to the other, be credible, under all the circumstances of the case?

Of the plea of alibi, the possible use is evidently without limit. It may alike be employed in penal causes and in non-penal causes. In both, the subject-matter of it may be the person of the defendant, the person of the demandant, or any other person—or instead of a person, it may be a thing.

But the sorts of causes in which in practice it is most in use to be employed, are penal causes: and the subject-matter of which the alibi is most in use to be predicated, is the person of the defendant. It cannot be true, that, at the time charged, I committed the offence charged, for at that time I was in another place; and it is not so much as charged, that, at the place where I then was, any such offence was committed by me or by any one else.

The system of procedure in which this plea occurs with a degree of frequency far beyond what is exemplified in any other, is the English;—more particularly in the case of the causes belonging to the higher penal classes, in which trial by jury is employed. In these cases, for one instance in which it is true, there are perhaps some hundreds in which it is false. The cases in which it is believed, I should not expect to find so numerous as those in which it is disbelieved; but (setting aside the one extraordinary case,) as often as it is advanced, perjury is employed in the support of it; and, as often as it is believed, so often is that perjury successful, and guilt triumphant, and the criminal taught by experience how he may proceed with impunity to the commission of other crimes. Should the prevention of crimes ever become a primary object with the powers that be, this source of turpitude, together with so many Edition: current; Page: [113] others, might without much difficulty be dried up: but as yet, fiat justitia, ruat cælum, has been the maxim: meaning by justitia, not the essence but the forms of justice.

1. One remedy that presents itself is, the not receiving any witnesses to a point of that sort, without their coming accompanied with a certain number of persons (of whom a part to be householders,) in the nature of the compurgators of the old law, to give an account of their character. There is no one, in such a country as this, be he who or what he may, who is not known to several.

An objection to this is, that there are many persons who have no good character, but who, for all that, may chance in good truth to have seen a man in one place, at the time when he is charged to have committed a crime at another. This is true; but, if the case with respect to their character be so, it is still fitting it should appear.

But he may be a stranger: either an absolute stranger, a foreigner; or a native just arrived from a distant country. But if this be the case, it is fitting it should appear: and the making it appear may be accepted in excuse for the want of compurgators. But how is this to appear? Not by the single oath of the witness himself; for he who will perjure himself in the immediate matter of the cause, where he is liable to confrontation, will still more readily do so in the preliminary matter, where he is not. The testimony, concerning him, of that person or those persons with whom he has lodged within a certain interval, should be required, in corroboration of his own: or, lastly, if he is an absolute vagabond, who has lodged nowhere, and is known to nobody, this also, it is very fitting, should appear.

2. Another remedy might be, the requiring notice to be given to the prosecutor, a certain number of days before the trial, of the names and places of abode of such intended witnesses—a practice already established as to all evidence on the side of the prosecution, in cases of treason—a practice much less liable to abuse in this instance than in that. In treason, there is always a common cause, and a common purse: a cause which sanctifies all means, and which, moreover, sets to work all means of obtaining acquittal, with at least as much alacrity in behalf of guilt as of innocence. In ninety-nine cases out of a hundred of ordinary prosecutions, the prosecutor has no wish to impress the judge with a persuasion of the guilt of the accused, any further than he is penetrated himself with that persuasion.

3. But the only adequate remedy, and one, perhaps, which may supersede the other two, is a power in the judge, after hearing all the testimony (but whether after or before the verdict given, may be made a question,) to adjourn the trial to a further day, or, what comes to the same thing, to appoint a new one; taking such securities as the nature of the case may require, for the forthcomingness of the defendant, by holding to bail, or by recommittal. In the mean time, all such particulars as may give a clue to the discovery of the situations and characters of such witnesses will have been drawn out of them by interrogation, and the prosecutor will be furnished with such lights as may guide him to the discovery of more numerous and unexceptionable witnesses, who may prove that the first set were themselves, at the time, in a place other than that wherein they pretended to have seen the accused; or may in some other way prove the falsity of their story.

Such a regulation being established,—men who now, for the sake of hire, or an unrighteous friendship, venture upon a perjury which rarely admits of detection, as knowing that it is but bearing on, and all is over, will shrink from the thought of encountering such a scrutiny as, after such lights, if well elicited, it is scarcely possible that anything but veracity should bear. I do conceive that the apprehension of such a scrutiny would, in by far the greatest number of those instances in which such machinations would otherwise be put in practice, prevent the attempt from being made at all, and, should it be made, from being unhappily successful.

Nor will these precautions, if rightly considered, be found to be less favourable, upon the whole, even to those at whose expense they are taken. The escaping by evidence of this suspicious kind, when unsifted and unexamined, never fails to leave a stain on a man’s character, which a thorough discussion, with such assistance, would effectually wash out.

§ 12.: Of improbability, as regards psychological facts.

On passing from physical facts to pyschological facts, a change of language becomes necessary. Where physical facts are concerned, the repugnancy between the alleged fact and the facts corresponding to the law of nature from which it is considered as deviating, or of which it is considered as a violation, is sometimes considered as existing in a degree which attaches to the alleged fact in question the character of improbability in this or that degree, sometimes in that superlative degree which stamps the alleged fact as impossible. In the case of the pyschological class of facts, this highest degree is not considered as having any place in the scale. In such and such circumstances it is improbable that a man should have acted or thought so and so,—thus much is said continually: but, that in any such case the improbability should have risen to the height of impossibility, Edition: current; Page: [114] is a degree of intensity to which the assertion has seldom been raised by the utmost heat of altercation. For expressing the conformity, the uniformity, observable amongst physical facts, laws of nature have been long ago laid down, as above observed. To the purpose of denoting conformity among psychological facts, the application of that fictitious mode of speech appears not to have been ever yet extended. The cause of this difference is obvious and simple. Amongst psychological facts, no such close conformity is commonly observed as amongst physical facts. They are not alike open to our observation; nor, in so far as they have happened actually to be observed, has the result of the observation been such as to warrant the supposition of a degree of conformity equally close.

The sort of internal perception or consciousness we all feel of what is called the freedom of our will, is of itself sufficient to put a negative upon the application of any such term as impossibility to any of the facts which present themselves as flowing from that source. To assert the impossibility of any given act, is to assert the necessity of the opposite act: and, in a proposition asserting the necessity of this or that act on the part of any human agent, a denial of the freedom of his will is generally understood to be involved.

Examined to the bottom, this consciousness of the freedom of our will would, it is true, be found to amount to neither more nor less than our blindness as to a part, more or less considerable, of the whole number of joint causes or concurrent circumstances, on which the act of the will, and with it the consequent physical acts, depend: nor is this the only instance of a false conception of power, growing out of impotence. But the question is, not as to what sort of expression might be best adapted to the case, but what the expression is, that is in actual use. And here too we see a further confirmation of the observation already made, viz. that it is only by a sort of misconception and verbal illusion, that such attributes as necessity, impossibility, probability, improbability, are considered and spoken of as if they were attributes and properties of the events themselves. The only sort of fact of which they are really and truly indicative, is the disposition of our mind, of our own judgment, to be persuaded, with a greater or less degree of assurance, concerning their existence or non-existence: to entertain an assurance, more or less intense, that, at the place in question, at the time in question, the fact in question was or was not in existence.

Physical improbabilities—facts rendered incredible to enlightened minds by their deviation from the course of irrational nature, have seldom of late years come upon the carpet in any court of judicature. The alleged improbabilities, which, on that theatre, are so much more frequently brought forward and opposed to direct evidence, are of the psychological or mental kind. Alleged or supposed acts or states of the mind:—consciousness or non-consciousness of this or that fact; recollection or non-recollection; intention or non-intention; operation or non-operation of the idea of this or that pain or pleasure, in the character of a motive; conduct of such or such a description, under the influence of such or such an intention:—any of these acts or modes of being are alleged as having exhibited themselves in the mind of some individual, in circumstances in which, to an unbiassed mind, judging from the known constitution of human nature, the existence of such alleged phenomena would present itself as incredible. Inconsistencies—inconsistencies in thought or action—is the denomination in common use, under which these psychological improbabilities may perhaps with sufficient propriety be comprised. By the improbabilities of this description with which a narrative appears pregnant, it will frequently lose its credit—if not as to the entire substance of it, at least as to the particular points to which the improbability appears to extend: the credibility of it will in this case be said to be overthrown by its own internal evidence, without its being capable of being supported, or requiring to be opposed, by any external evidence.

In cases of this description, the apparent improbability, as in the above-mentioned physical cases, will be susceptible of an indefinable multitude of gradations. Insanity may be considered as marking the highest point in this scale. According to the degree in each case, will be the force with which it acts against the direct evidence—the persuasive force with which it operates upon the mind of the judge. Such as its relative force is in each instance, such, in that instance, will be its effect. In one instance, it will prevail over the direct evidence, and the direct evidence will be effectually discredited by it: in another instance, the decision will be governed by the direct evidence; though, in proportion to the apparent improbability, it is but natural that the persuasion on which the decision is grounded should be lowered and weakened by it.

To class these cases of psychological improbability under heads, each head being illustrated by apposite examples taken from the most remarkable causes that have been determined, on questions of fact, among the most enlightened nations, would be a work of considerable curiosity; and, notwithstanding the impossibility of marking out and distinguishing the different degrees and shades of Edition: current; Page: [115] improbability, would be of no inconsiderable use. But the task would be a work of itself, too laborious, as well as voluminous, to be comprised within the limits of the present work.

The advances that, within the few last centuries, have been made in the study of these psychological laws of nature,—these advances, though not so describable, nor perhaps so considerable, as those made in relation to the physical laws of nature, have, however, been by no means undiscernible in their effects. To weigh evidence against evidence—to weigh particular evidence against general probability—requires a proportionable skill in the science of psychology. It is to a deficiency of skill in this useful science, accompanied with a consciousness of this deficiency, that the system of procedure may ascribe so many altogether inapposite or imperfect and now exploded contrivances for the investigation of legal truth: trial by ordeal, trial by battle,* wager of law, oaths expurgatory and suppletory.

To the same cause may moreover be ascribed those defects which may still be observed in such abundance in the system pursued with respect to evidence among the most enlightened nations. To investigate these defects, step by step, is the direct object of the present work: but, in the meantime, a presumptive only, but not unimpressive, proof of their existence, is the diversity of the courses pursued on this ground, as between nation and nation, in the pursuit of the same end; and not only as between nation and nation, but between province and province; nay, between court and court, in the same nation and the same province.†

CHAPTER XVII.: ATROCITY OF AN ALLEGED OFFENCE, HOW FAR A GROUND OF INCREDIBILITY.‡

A crime is the more improbable (it has been said,) the more atrocious; and the practical inference is—

The more atrocious the offence, the greater the force of evidence requisite to prove it.

Thus nakedly given, as we see it frequently, without the requisite explanations, the observation is fitter for a play or a novel than for a treatise on jurisprudence. It proceeds from an indistinct view of the subject; and, in respect of the practical conclusions pointed at, it requires explanation, and distinctions to be made, to prevent it from being productive of pernicious errors in practice.

The imputation is an incredible one: Why? Because the man on whom it is cast bears so excellent a character:—such is the argument, in the case mentioned in a preceding chapter. The imputation is an incredible one: Why? Because he is a man:—such is the argument in the present case. This is what is called sentiment; and being so, is addressed, it is said, to the heart.

The depravity of human nature, and the dignity of human nature, are among the topics on which the practitioners in the arts of rhetoric (that is, of deception) have been fond of skirmishing: some on the one, others on the other, some on either or both, according to the purpose.

Of a man who brings forward this observation, the first question to be asked is, what he means by atrocity? But this is that sort of question which the sort of writer in question takes care not to put to himself; his readers would not thank him for it. Nothing is more troublesome to a man, than to be obliged to know what he means: no error so pernicious, that he would not rather adopt and give currency to, than load himself with so much trouble. To explain or to inquire what it is a man means, is metaphysics:—light is an object of hatred to all owls and to all thieves; definitions, under the name of metaphysics, to all rhetoricians. “I hate metaphysics,” exclaims Edmund Burke, somewhere: it was not without cause.

What then is, on this occasion, meant by atrocity?—the atrocity of the offence—no, Edition: current; Page: [116] not of the offence; that would not be sentimental enough:—of the crime. The word crime, being incurably indistinct and ambiguous, is the word to be employed upon all rhetorical occasions.

Does it mean the mischievousness of the offence? If it does, the proposition is in a great degree erroneous. Of all offences, by far the most mischievous are those which owe their birth, or tend to give birth, to civil war: treason, rebellion, sedition, and the like.—Suppose a civil war:—subject of dispute, title to the throne: question on which the title turns, legitimacy. The nation is equally divided: to-day, one half are traitors; to-morrow, the other half. Whichever half is, for the time being, on the unsuccessful side, and composed thereby of seditionists, rebels, traitors, it is on that side that you find the most disinterested, the most generous, the most heroical of mankind. If, then, by atrocity we mean mischievousness, the proposition, that an offence is the more improbable the more atrocious it is, is not true.

By atrocity is not unfrequently, perhaps most frequently, meant, neither more nor less than odiousness; meaning of course by odious, that which is so (no matter for what reason, no matter whether with or without reason) to the individual by whom the appellation is employed: in a word, that which is the object of his antipathy. To one set of men, the man who differs from them in some peculiarly tender point bearing relation to religion, is the most atrocious character; to another, or to the same, the man who has been drawn into some devious path by the impulse of the sexual appetite. The existence of the Christian, the Theist, the Atheist, I have thus heard successively denied by their respective abominators. In printed books I have observed doubts, next in force to denial, expressed with relation to the existence of those non-conformists who, in company with the wearers of linsey-woolsey, are consigned to destruction in the second edition of the Mosaic law. All passions are cunning; antipathy not less so than any other. On the part of the antipathist, the profession of incredulity is but a pretence and a disguise, to enable him with more decency to give vent to his rage, and with more effect to point the rage of others against the odious object. If the existence of these monsters is so incredible, the practical consequence should be, not to be so ready to devote to perdition this or that individual, under the notion of his being one of them. But the antipathist knows better than to be thus cheated of his prey. The existence of the monster is to be incredible, or next to incredible, for the purpose of rendering him proportionably odious. The odiousness, being the medium of proof for the demonstration of the improbability, is assumed of course; and, forasmuch as an attempt to prove supposes the necessity of proof, and assumption the non-necessity of proof, assumption of a fact is still more persuasive than the strongest proof of it. To screw up the odium against a man to the highest pitch, you begin with declaring his existence—the existence of so odious a character—next to impossible: having thus pointed against him the rage of the judge, you make use of that rage for disposing the judge to believe him guilty. While Louis XIV. was persecuting the Huguenots, it was an established maxim, a fiction of French law, that there were no such persons in existence.

By atrocity may, again, be meant cruelty—cruelty displayed in the commission of the offence. This sense is, of all, the most literal and proper sense. But, if the import given to the word atrocity is thus confined, the application of the maxim, the description of offences to which it is applicable, is proportionably confined. It is almost confined to personal injuries, homicide included. If wilful destruction by fire or water be included, it will be either because homicide, or the imminent danger of that mischief, and upon a large scale, are involved—or because, in its application to property, the amount of the mischief or danger is so indefinitely extensive.

Consider, then, the maxim in this sense. In the case of an offence characterized by cruelty, the seducing motives have to contend with the motive of humanity, sympathy, general benevolence (take which name you will,)—to contend with it in its character of a restraining, a tutelary motive.* The disposition of the individual in question being given (that is, the effective force with which it habitually acts upon his mind,)—the greater the degree of cruelty said to be displayed in the offence said to be committed, the greater the force with which, on that particular occasion, the motive in question must have opposed the perpetration of it.

But the principle of humanity is but one of several principles, which, on every such occasion, are acting upon the human mind, in the character of tutelary and restraining principles. There are, besides this, the three respective forces of the political, the moral or popular, and the religious sanctions. Neither is this by any means the most intense and uniform in its operation, of the four tutelary forces. It may or may not be stronger than the force of the religious sanction—it may or may not be stronger than that of the moral,—but it never can be accounted comparable in strength to that of the political sanction. Many men fear the wrath of Heaven; many Edition: current; Page: [117] men fear loss of character: but all men are acted upon, more or less, by the fear of the jail, the scourge, the gallows, the pillory, and so forth. In this point of view, whatever improbability is given to the supposed offence in question by those other restraining motives, the additional improbability given to it by the circumstance in question seems scarce worth taking into the account.

On the other hand stands a circumstance which must not be overlooked. The force of the political and moral sanctions acts upon a man in the character of restraining motives, only upon the supposition of discovery. The force of humanity has this in common with that of the religious sanction, that the supposition of discovery is not necessary to the application of it; and, besides the comparatively greater extent of its operation when contrasted with the religious sanction, the principle of humanity (whatever may be the force with which it acts,) is surer to be present to the mind. The suffering, of which the injury meditated threatens to be productive, can scarcely fail to be present to the mind of the offender, especially where the pleasure of enmity—the pleasure expected from the suffering of the intended victim, constitutes the motive to the offence. This is what cannot fail to be in a man’s thoughts; whereas the fear of God may be altogether out of his thoughts.

But whatever may be the degree of cruelty displayed in the commission of the offence, or even on whatever other score it may appear psychologically improbable, a most material consideration is this. Supposing the imputation unfounded,—does the innocence of the defendant import, as of necessity, consciousness of such innocence (and consequently mendacity, criminative perjury) on the part of any person in the character of an accusing witness? If yes, the presumption operating in favour of the defendant from this source seems completely destroyed by the counter-presumption in favour of the witness. For (as there will be more occasions than one for observing) with the exception of the imaginary offences invented by superstition, there is no offence so improbable (because in practice so unfrequent) but that the offence of him who by criminative perjury seeks to fasten upon another the imputation of that offence, is still more so. Thus, if (for example) it be always improbable that murder should be compassed in any of the ordinary ways in which that crime is perpetrated,—it seems at least as much so, that it should (which it would be by a false accusation of that crime) be so by this hazardous expedient of calm and deliberate malignity.* Within the compass of the last and present century, the number of persons who have committed robberies has been many thousands; but there will scarce be found ten who have given false evidence of that or any other capital crime.

There remains, therefore, for the only case in which this maxim (whatever may be the force and value of it) can have any application, that in which the evidence operating in crimination of the defendant is purely of the circumstantial kind: unless it be worth while to add those sorts of offences (witchcraft, and so forth) which are not capable of being rendered probable by any quantity of testimonial evidence.

What degree of exculpative force may be proper to be given to the circumstance thus denominated, will rest for a judge to determine, upon a review of all the other circumstances belonging to the case.

The essential practical consideration—the essential warning, is this: not to think of employing it as the foundation for any inflexible rule, requiring as necessary to conviction, this or that particular dose of evidence: such as the testimony of two witnesses, the confession of the defendant, or, in a word, any other determinate mass of criminative evidence.

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BOOK VI: OF MAKESHIFT EVIDENCE.

CHAPTER I.: OF MAKESHIFT EVIDENCE IN GENERAL.

§ 1.: Makeshift Evidence, what.

Thus much concerning that description of inferior evidence, the inferiority of which consists in this—viz. that the fact, the existence of which is immediately indicated by it, is not the very fact in question—the fact, of the existence of which, a persuasion is endeavoured to be produced in the mind of the judge,—but some other fact, which, though distinct from that principal fact, is so connected with it, as that (with a greater or less degree of assurance) the existence of such principal fact is inferred, and considered as being rendered more or less probable by the existence of the evidentiary fact.

We come now to that description of inferior evidences, the inferiority of which consists in this—viz. that, be the fact what it may (principal or evidentiary,) the information which it conveys has some circumstance belonging to it, which—by rendering inapplicable to it some one or more of the securities that are applicable to ordinary evidence—renders its probative force in a greater or less degree inferior to that possessed by ordinary evidence when those securities (such of them as are applicable to it) are actually applied to it.

Of the different powers, qualities, and operations, serving as securities for correctness and completeness—securities against deceptitious incorrectness and incompleteness—a view has been already given.* By the inapplicability or non-application of these several securities, and the groups which, by ringing the changes, might be formed out of them, may be constituted so many species of evidence of inferior shape;—of evidence, the probative force of which is lessened by the imperfection thus produced in the shape in which it presents itself to the mind to which it belongs to judge.

When the non-application of them has for its cause the mental weakness or corruption of the man in power—of the legislator or the judge,—the principal of the shapes in which this imperfection has displayed itself, have, under the head of Extraction, been already brought to view.†

But cases exist,—and cases the exemplification of which is abundantly frequent,—in which this imperfection has for its cause, not any failure on the part of the man in power, but the unchangeable nature of things. In the imperfect shape in question, the article of evidence is to be had; in any other shape it is not to be had—at least as matters stand at present.

Agreeing in this one common character—viz. that of imperfection, and of imperfection the origin of which is traceable to the source just indicated—being employed only because, from the same source, better evidence, evidence of a more trustworthy complexion, of greater probative force, is not be had,—these several species of evidence, how dissimilar soever in other respects, may be brought together and designated by one common appellation,—viz. that of makeshift evidence.

On this subject three distinguishable tasks present themselves to the eye and conscience of an honest and intelligent legislator:—1. To take an inventory of those species of inferior, yet not the less indispensable, evidence; 2. For the information of the judge, to hold up to view their several features of infirmity; and 3. By apposite powers and instructions, to do whatsoever the nature of things admits of, towards the removal of their several infirmities, by completing in each instance the requisite assortment of securities; or by so ordering matters that testimony in a more trustworthy shape may in future take place of testimony in these less trustworthy shapes.

§ 2.: Of the different species of makeshift evidence.

Under the denomination of makeshift evidence are comprehended two divisions or subclasses, the contents of which, as compared with one another, have nothing in common, except the infirmity in consideration of which the term makeshift is alike applicable to both.

These are, unoriginal evidence, and extra-judicially written evidence.

I. Extra-judicially written evidence. Susceptible alike of this common denomination will be found three sorts or genera; viz. 1. Casually written; 2. Ex-parte pre-appointed; 3. Adscititious or imported.

The different modifications, for the expression of which these denominations have been devised, will all of them receive further explanation, each of them in its place.

In every instance, that inferiority in respect of probative force, in consideration of which the term makeshift was found applicable with equal propriety to them all, will be seen to have for its cause the absence of one of the principal securities for correctness and completeness—viz. interrogation ex adverso at the hands of a party, whose interest, in the event of its being incorrect or incomplete, may, in proportion to that incorrectness or incompleteness, be made to suffer by it.

In the case of unoriginal evidence, the word supposed forms, in the instance of each of the genera contained under it (as above,) an indispensable adjunct. If not expressed, it must at any rate be borne in mind, or confusion and misconception will be the result.

In the case of every such article of evidence, there are at least two different statements in question: one, the existence of which is certain; the other such that, though the existence of it is asserted (viz. in and by the statement which, as above, is certainly known to exist,) it may happen, notwithstanding, in the whole or in any part, not to have had existence.

That which is certain, is that which, to a certainty (viz. by the very supposition,) is presented to the mind of him to whom it belongs to judge: to his hearing, if it be oral; to his sight, if it be scriptitious.

Titius, standing before the judge, says—“I heard Sempronius say so and so.” This is supposed oral through oral evidence. The oral evidence is that which is said by Titius: the supposed oral evidence is that which by Titius is said to have been said by Sempronius. By the judge it will naturally be supposed to have been said by Sempronius; because, generally speaking, it will be more likely that what was said by Titius was true, than that it was false. But, in speaking of this supposed statement, to employ the same unqualified expression as that which (as above) is employed in speaking of the statement made before the judge, would be to assume as indisputable that which, in general, will, in case of litigation, be among the matters in dispute. That, in the presence of the judge, Titius said to the judge, “Sempronius said in my hearing so and so,” is out of dispute. But what may happen is, that, in saying thus, what Titius said was altogether false; Sempronius not having, in his hearing, ever said anything at all, or at least not having said anything to any such effect.

Omitting the adjunct supposed, had the denomination been, in this case, oral evidence through oral,—in this case, the truth of what was supposed to have been said by Sempronius would not, indeed, have been represented as out of dispute; but the truth of that which was said by Titius, in saying, “Sempronius in my hearing said so and so,” would have been represented as being out of dispute: whereas, in the nature of this species of evidence, this point is no less open to dispute than the other.

Of the three sorts of evidence here comprehended under the general denomination of extrajudicially written evidence, the points of coincidence and difference may be thus stated:—

Whatever a man writes, that is capable of being employed in evidence, but without any expectation (unless with a fraudulent intention) of its being so employed,—if, being addressed to any other person, it is designed to be communicated to him,—comes, in common language, under the denomination of a letter; if it be not so addressed, it may be, and is, included under that of a memorandum.

In both cases, if it happens to the document to be employed in the character of judicial evidence, it may be designated by the common appellation of casually written evidence.

But there are cases in which,—not wearing the form of evidence, nor, as such, antecedently to their creation, called for by authority of a court of justice—letters, as well as memorandums, are written for a purpose analogous to that for which evidence is so called for; that is, for the giving effect to rights and obligations; and not altogether without a view towards their being made (in so far as the established rules respecting evidence will admit) subservient to the purposes of evidence.

Of this genus, the most striking, and, in respect of their extent and application, the most important species, are,—in the shape of memorandums, all those entries which form the matter of a mercantile book of account,—in the shape of letters, those which are written or received by mercantile men, in the course or for the purpose of their commerce.

These, therefore, being written not without a view to their being eventually made subservient to the purposes of evidence, may appear in that consideration to rank themselves under the head of preappointed evidence:—but, not being endowed with either of those qualities, by one or other of which whatsoever has been ranked under that head stands distinguished so much to its advantage (viz. the being produced by the concurrence of every party whose rights would be injured Edition: current; Page: [120] either by spuriousness or by any deceptitious incorrectness or incompleteness in its tenor; or else by some party whose situation, bating casual fraud, places him out of all danger or suspicion of any sinister interest capable of engaging him in the design of giving to it any such deceptitious character,)—it becomes necessary that this inferior sort should, by a term expressive of the distinguishing circumstance, be distinguished from that superior sort of evidence. It has therefore been called evidence preappointed ex parte.

By the term adscititious or imported evidence, is meant to be expressed any statement in writing, which, on the occasion of its being written, was not designed to be employed in the character of evidence in the cause in question, but was designed to be employed (whether actually employed or not) in the character of evidence, viz. in some other cause: and it is with reference to such other cause that it is termed adscititious or imported, as having, for the purpose of the cause in question, been borrowed (as it were) from that other cause.

In the case of evidence borrowed from another cause, it may happen that some or all of the appropriate securities for the trustworthiness of evidence were applied to it in that cause. But it will scarcely happen that a set of securities was applied to it, the same in all respects as that which, in the cause in question, might be applied to it. Interrogation, for example, yes: but not at the instance of all the same parties; or, even if at the instance of every one of those same parties, yet one or more of them, perhaps, were not at that time possessed of all the material sources of information, and consequent grounds for interrogation, which they possess at present.

This is the most favourable case. But, in respect of probative force, this species of evidence (which at the worst seems to have all the advantages of both the extra-judicially written species of evidence just mentioned) may be rendered by any number of degrees weaker and weaker, by the several defects which, if the judicatory be different, are liable to have place in the course of procedure pursued in such other judicatory, in relation to evidence.

With imperturbable composure we shall see judges after judges employing (and in the English system, which judges shall we not see employing?) and taking for the sole grounds of decision, modes of collection, of the unsuitableness of which to the purposes of justice, they are themselves, and ever have been, perfectly and confessedly convinced:—evidence altogether uninterrogated, in the shape of affidavit evidence: evidence interrogated, not by any of the parties, nor yet by a judge, but by a clerk, who, being alone with the witness in a private room, makes him sign what he pleases. Under these circumstances, supposing the procedure of the judicatory directed to any such ends as the ends of justice, it may be imagined with what varied degrees of distrust it cannot but regard whatever masses of evidence may have been imported into it from any of those judicatories in which the convenience of the judge is substituted to the ends of justice.

Aliâ in causâ—inter alios—alio in foro—alieno in foro: by these adjuncts, an idea may be given of so many obvious specific modifications of the genus adscititious evidence.

Casually written evidence; evidence preappointed ex parte; and adscititious evidence; these form, as it were, a class apart from that for the designation of which the term unoriginal is employed. Not but that evidences, partaking of the qualities in consideration of which they have been designated respectively by those several denominations, are capable likewise of partaking of that quality for the designation of which the word unoriginal is employed. Not that casually written evidence, evidence preappointed ex parte, and the evidence termed adscititious evidence, are less capable than any other sorts, of adding to the qualities designated by those several appellations the quality of unoriginality; in which case they will add, each of them, to its own characteristic infirmity, the infirmity that forms the character of that fourth species. But, of all evidence here comprised under the appellation of unoriginal evidence, this of non-originality constitutes an essential and inseparable quality: whereas, in those several other cases, if it be present, it is but as an accidental one.

§ 3.: Properties common to all the kinds of makeshift evidence—Topics to be touched upon in relation to each species.

Of every one of the several objects comprehended (as above) under the common denomination of makeshift evidence, the following propositions seem capable of being predicated with equal truth:—

1. Of the information respectively conveyed by them, the truth has not been provided for by any, or at least not by all, of the securities, which (as above) are capable of being, and ought to be, applied to evidence—ordinary evidence, when presented in its best shape.

2. The shape in which the information contained in them is presented, renders them respectively inferior, in point of trustworthiness, to ordinary evidence.

3. By the circumstance by which they are respectively distinguished from ordinary evidence, each of them is liable to have been employed as an instrument of a particular species of fraud: a particular modification of Edition: current; Page: [121] what, in speaking of all or any of them, may be termed the characteristic fraud—the characteristic fraud incident to makeshift evidence.

4. This fraud consists in the fabrication and utterance of the evidence, the pretended information, in question,—in contemplation, and under the assurance, of the inapplicability or non-application of the securities for trustworthiness; viz. sanctionment, or interrogation, one or both of them.

5. Though the more formidable part of the mischief is composed of the deception and consequent misdecision of which the characteristic fraud may be the instrument, it is not the whole: since, for want of the security afforded by the safeguard in question against incorrectness and incompleteness, the same evil consequences may take place through temerity, or even without blame.

6. They are all of them indicative of the existence (present, or at least past) of ordinary regular evidence, such as is, or at least at one time was, or ought to have been, obtainable in the best shape from the same source; i. e. either from the same thing (as in case of real evidence,) or from the same person (as in case of personal evidence.)

7. They are, therefore, unless for special causes, not fit to be admitted, any of them, by itself, in its essential shape: the information conveyed by them is not fit to be admitted, unless, being drawn from the same source, it be presented (provided it be capable of being so presented) in the ordinary,—i. e. in the superior and more trustworthy, shape.

8. The information respectively contained in them may, in such its inferior shape, be presented, and by itself, if in its regular and ordinary shape the presentation of it is either altogether impracticable or not practicable without preponderant inconvenience, viz. in the shape of delay, vexation, or expense.

9. By and after the indication and warning thus given of the characteristic fraud of which they are respectively liable to become the instruments,—if it be in the will as well as in the power of the judge to possess himself of it, the danger of deception by means of such fraud is lessened: the probability of succeeding in any attempt, and thence the probability of the attempt itself, is diminished.

Shall it, in any and what cases, be admitted? The danger of deception attached to the admission of it, can it, by any and what means, be diminished? Such are the subjects of inquiry which present themselves as proper to be considered in relation to each of the several species of makeshift evidence hereinabove brought to view.

Previous explanation of their respective natures and sub-modifications, will, in so far as deemed necessary, come in of course.

CHAPTER II.: OF EXTRAJUDICIALLY WRITTEN EVIDENCE.

§ 1.: Of casually written evidence.

To a private letter or memorandum this appellative is applied, for the purpose of distinguishing this from other species of written evidence, widely different in point of trustworthiness, viz. preappointed written evidence at large, and judicially written evidence;—to which last belong, ready written evidence delivered spontaneously; ditto delivered ex interrogato (delivered in the epistolary form, on being called for by interrogation in the same form;) and evidence judicially delivered in the oral form, whether spontaneously or ex interrogato, and thereupon forthwith consigned to writing on the spot.

Evidence preappointed ex parte, though extrajudicially, can scarcely with propriety be said to be casually written; it being written for particular purposes, and those always uniform in their nature.

Of the characteristic fraud, as above considered under a general aspect, the particular modification of which extrajudicially and casually written evidence is liable to become the instrument, may be thus described:—

Under the assurance of not being exposed by it to punishment (no punishment being, in case of mendacity, attached to it, through the medium of an oath, or otherwise,) nor yet to ill repute, or at any rate not of the degree of public shame, the author not being about to be subjected to interrogation in respect of it,—a man utters in this form a fallacious statement, adapted to a deceptitious purpose. It is either incorrect, or incomplete, or both; incomplete in the way of partiality, and thereby calculated to produce deception, and misdecision in consequence.*

Fraud is not the only source in which the inferiority of extrajudicially written evidence, as compared with ordinary evidence judicially extracted from the same source, is to be looked for. Neither of the main securities against incorrectness and incompleteness—neither the fear of eventual punishment in case of falsehood, nor the scrutiny of interrogation Edition: current; Page: [122] and counter-interrogation—have been applied to it. Without other blame than that of temerity, or even without any blame at all, both sources of deception, incorrectness and incompleteness, more particularly incompleteness, may therefore have crept into it.

Whose is the discourse which it conveys, or purports to convey?—that of an extraneous witness, or that of a party in the cause?

If that of a party, at whose instance is it tendered or called for?—that of the party whose discourse it is? or that of another party on the same side? or that of a party on the adverse side?

According as it happens to it to stand in one or another of these different predicaments, the propriety of giving admission to it will (it is evident) stand upon a different footing; as well as, in case of admission, the expedients to be employed for reducing the danger of deception, and consequent misdecision, to its lowest terms.

In what case, if in any, shall evidence of this description be admitted?

When admitted, by what expedients may the danger of deception, considered as producible by the admission of a species of evidence thus liable to be vitiated by incorrectness and incompleteness, be diminished?

To provide an answer to the above questions, is the object of the following rules:—

I. Case the first. He whose discourse the script appears to be,* not a party in the cause: the evidence, therefore, which it contains, extraneous.

Rule 1. Except in the cases excepted in the next rule, admit it not.

Question. Why not admit it?

Answer. Because, by excluding it (deduction made of the cases in which it is proposed to give admission to it,) no information stands excluded. The person whose discourse it purports to be, being forthcoming and interrogable in a mode less exposed to incorrectness and incompleteness, it rests with you to obtain whatever information it contains, and more. Read by itself, he not forthcoming or not interrogated in respect of it, the substitution will naturally be a cause of incorrectness and incompleteness, and misdecision the more or less probable consequence: he interrogated, and this supposed written discourse of his read notwithstanding, the addition is superfluous; inconvenience, in the shape of delay, vexation, and expense, all useless,—the certain consequence.

Rule 2. The evidence extraneous as before, in the following cases admit it.

1. On him whose discourse it purports to be, the process of interrogation (viz. oral interrogation) rendered either physically or prudentially impracticable: physically, as by death or incurable mental infirmity; physically or prudentially, as by expatriation or exprovinciation: the interrogation effectible either not in any terms, or not without preponderant inconvenience in the shape of delay, vexation, and expense.

2. On him whose discourse it purports to be, the process of interrogation performable and performed; the reading of it called for on either side, viz. either for an affirmative or a confirmative purpose; for the purpose of showing that, at the time of framing the written discourse in question, the statements contained in it were in any point discordant, or on the whole concordant, with the testimony now, by interrogation and counter-interrogation, extracted from the same source.†

Question. Why give admission to evidence in a shape thus liable to be vitiated by incorrectness and incompleteness.

Answer. Because, were it excluded, whatsoever information were not attainable from any other source would thereby stand excluded. Here, then, supposing that the information is necessary to a decision in favour of that side, here would be deception, and consequent misdecision, to a certainty; whereas, by admission given to it, certainty of being credited would not be given to it, even supposing it true; still less, supposing it false. Not being (unless in case of fraud, which is comparatively an improbable case) framed for the purpose,—the probability is, that, taken singly, how correct soever, it will be (in relation to the whole of the facts in the cause taken together) more or less incomplete; that, accordingly, it will be composed, in great part, if not in the whole, of circumstantial evidence; and since, without danger or suspicion of danger, circumstantial evidence is received, how slight soever, how weak soever, its probative force; so, therefore, may evidence of the description here in question, not to speak of any other.

Note,—that, if the species of makeshift evidence here in question be incorrect or incomplete, to the degree of utter or material Edition: current; Page: [123] falsity, it will of course be counter-evidenced by the direct and strenuous evidence of the party against whom it operates.

Instruction to the judge for avoidance of deception, considered as producible by the observance of rule second in the first of the two cases therein contained:—

It will on this occasion be matter for inquiry, whether, at the time of the utterance of the written discourse in question, he whose discourse it is, was not exposed to the action of some interest, of a pecuniary or in any other way of a self-regarding nature; and whether his interest did not at that time stand connected by some special tie of dependence or affection, with the interest of the party by whom, in the character of evidence, the paper in question is produced; and this in such sort and degree (the quantum of profit being moreover taken into consideration) as to render the practice of the characteristic fraud more or less probable in this case.

A book-keeper,* for example, charges with goods a customer or supposed customer of his master’s, knowing that by the person so charged the goods were neither received nor ordered. The book-keeper (not to speak of death, an event not likely to have been intended) ceases (viz. by expatriation or exprovinciation) to be forthcoming for the purpose of justiciability. Joined to the fabrication of the written document,—the expatriation or the exprovinciation, may it not have had for its cause the design of putting the undue profit into the pocket of the master? The testimony delivered by the paper is incorrect, to the degree of total falsity; and the falsehood is endeavoured to be screened from detection, by the non-interrogation of the author; while the author himself is effectually secured from punishment, by his non-forthcomingness, and that non-justiciability which is the result of it.

In a case of this sort, against the probability of the characteristic fraud, note this dilemma. If the claim (the unjust claim for the support of which it was designed) be made soon after the fabrication of the evidence, the expatriation or exprovinciation must have taken place in the mean time; and, being so timed, the non-forthcomingness of the fabricator will operate in the character of circumstantial evidence, giving probability to the supposed actual fraud:—if the claim be not made till long after, the non-demand for such a length of time is another article of circumstantial evidence, pointing the same way. And here, as above, note, that this disprobabilizing circumstantial evidence will be seen to have for its support the direct testimony (if received, as it ought to be) of the party against whom the fraud in question operates. And not only the particular account-book in question, but all the others kept by the same dealer, will be, or at least ought to be, producible at the instance of the party so charged.†

II. Case the second. He whose discourse the script appears to be, a party in the cause; the person at whose instance it is called for, a party on the opposite side; the tendency of the evidence consequently confessorial, or otherwise self-disserving.

Rule 3. In this case, let the script be admitted; but upon condition that the party, on recognising the discourse as his, shall he at liberty to deliver his own testimony (subject to interrogation) in explanation of it.‡

Question 1. Why give admission to evidence of this description, thus liable to be rendered, in respect of incorrectness or incompleteness, an instrument of deception?

Answer. Because, in so far as its tendency is to operate against him whose discourse it is (i. e. in so far as its tendency is confessorial,) it is the most trustworthy and satisfactory species of evidence that can be produced; no person being so little in danger of prejudicing a man in this way (either purposely, through mendacity, or heedlessly through temerity) as the man himself; and that the tendency of it (true or false, justly or unjustly) is not (in the opinion of the person best qualified to judge) to operate to the prejudice of him by whom it is called for, is sufficiently proved by the circumstance.

Question 2. Why annex as a condition, that at his own instance he may, subject of course to interrogation, be admitted to testify in explanation of it?

Answer. Because evidence of this description is in a particular manner liable to be, if not incorrect, at any rate incomplete. To admit it to receive explanation, is to allow what misstatements it may contain to be corrected—what deficiencies it may contain to be supplied. To refuse to it the faculty of receiving such explanation, is to keep it, by force of law, in a state, the tendency of which Edition: current; Page: [124] is to produce deception, misdecision, and injustice.*

Rule 4. Although, by death or other cause (such as incurable infirmity of mind, or expatriation,) he whose discourse this self-disserving testimony is, be incapable of testifying in explanation of the script,—admit it notwithstanding.

Question. Why admit it, under the danger of incorrigible incorrectness and unsupplyable incompleteness, as above?

Answer. First, because the danger of misdecision for want of information, in case of exclusion put upon the evidence thus circumstanced, appears in this case to be preponderant over the danger of misdecision by reason of information rendered deceptitious for want of such explanation as, had the party been forthcoming, it might have received. Suppose the information necessary to warrant a decision in favour of that side,—from the exclusion of it, misdecision takes place as a certain consequence; whereas, on the other hand, it is not certain that the information contained in it will be either incorrect or incomplete; and, if either incorrect or incomplete, it is not so likely to be so to the prejudice of the author’s side as to the prejudice of the other; nor, though it should be both incorrect and incomplete, is it certain but that the effect of the incorrectness may be corrected, and the deficiency supplied, by inferences, drawn partly from the script itself, partly from whatsoever other evidence there may be in the same cause.

The safety with which admission may be given to evidence of this description, seems to be indicated by experience. Even without any such security against deception as is here proposed, self-disserving evidence is admitted in this shape—admitted without reserve—in English practice. Even thus, the mischief (though, doubtless, it cannot be unfrequent) seems never yet to have become prominent enough to have been presented as an object of notice to the public mind: much less considerable would it be, were the means of amendment suffered to be applied to it as above.

III. Case the third. He whose discourse the script appears to be, a party in the cause, as before; but he himself the party at whose instance it is proposed to be produced: the tendency of it, consequently, self-serving.

Rule 5. In this case, likewise, let the script be admitted; the party being of course subject to interrogation on the subject of it, and in explanation of it; viz. by interrogatories propounded on the other side, and having, consequently, the effect of counter-interrogation.

Question. Why give admission to evidence so obviously liable, in so high and manifest a degree, to be mendacious, or (through bias or temerity) incorrect or partially incomplete, and thence to become an instrument of deception?

Answer. In the case of an extraneous witness, interest can never be, in any case, a sufficient ground for exclusion.† Moreover, in the same case, interests, as strong as any that are most apparent, may exist without being known, without a possibility of being brought to light; while, of the interest which a party has in the cause, the existence is known of course. In the case of a party, the sinister mendacity-promoting interest may in itself be no greater than in the case of an extraneous witness; and in particular in one of those instances in which, being undiscoverable, it cannot be taken for a ground of rejection. But in the case of a party, the interest, whatsoever be its effect in respect of the production of mendacity, is much less liable to be productive of deception, than in the case of an extraneous witness: because, being more manifest, presenting itself the more readily to the observation of every, even the most undiscerning, observer, the suspicion it excites will be stronger,—its probative force, consequently, weaker.

Whatsoever may be the danger, the probability, of mendacity, self-serving mendacity, and consequent deception, attached to the admission of the testimony of the party in his own behalf, deposing in the ordinary mode of oral responsion to oral interrogations,—that danger cannot, from the admission of a written discourse of the same tendency, though of a prior date, receive any increase: he is subject to counter-interrogation in the one case, and, by the supposition, so he is in the other. His extrajudicially composed written statement will, in his conception at least, operate in confirmation of the testimony he has to deliver in answer to interrogatories: But so, and without prejudice to his veracity or title to credence, it very well may; especially when so it happened that, at the time of his framing it, he had not, either in fact or in prospect, any such interest as that in virtue of which he became, at a subsequent point of time, a party in the cause.

Rule 6. Although, by death or other cause (as above,) he whose discourse this self-serving testimony is, be incapable of testifying in explanation of the script; admit it here also, notwithstanding.

Question. Why give admission to evidence Edition: current; Page: [125] liable, in a degree still so much higher, to be mendacious, or (through bias or temerity) incorrect or partially incomplete, and thence to become an instrument of deception?

Answer. For the same reasons as those brought to view in support of rules 2, 4, and 5, though not operating with so great a force. In some cases, as above, it may be as well entitled to credence as evidence from any other source, and at the same time of material and indispensable use towards bringing to light and explaining the facts that have application to the cause. And in this case, as in the case mentioned under the last preceding rule, so palpable are the considerations that operate in diminution of the probative force of the evidence, that the danger of its being estimated at a value over and above that which properly belongs to it, does not present itself as naturally preponderant.

No doubt but that, in general, a man will be more strongly disposed to make false evidence to serve himself, than to serve another. But, under the impression of his remaining under the eventual obligation of being counter-interrogated on the ground of this extra-judicially written self-serving evidence, no less sharply than on the ground of oral evidence of the same tendency delivered on the spot,—counter-interrogated, and with time in abundance to frame the plan of interrogation; or (in the case here supposed) under the assurance that such counter-interrogation cannot be escaped from definitively but by death, nor for a time but by expatriation or exprovinciation—both of them facts operating in the character of circumstantial evidence, to the discredit of such his written testimony; the sort of fraud in question does not present itself as likely, either to succeed if attempted, or so much as likely to be attempted.

Where exclusion of evidence would be improper, precautionary regulations, to diminish the chance of deception from such evidence, are very often proper, and in a high degree.

Let the danger of misdecision, the result of deception produced by casually written evidence, be, in comparison with the danger of misdecision from exclusion, ever so inconsiderable, whether in point of magnitude or probability,—still no expedient ought to be neglected by which, without its being productive of preponderant inconvenience in any other shape, the danger from admission promises to be diminished.

To an effect thus desirable, the following regulations present themselves as promising to be conducive:—

1. In every instance in which evidence of the description here in question is, in any of its possible modifications (as herein above enumerated,) produced,—let it be an instruction from the legislator to the judge, to state, at the time of his giving judgment, the infirmity of so much of the evidence as comes under this description, and (in the case of his having given credence to it notwithstanding) the consideration by which such his credence has been determined: and this, if judging without a jury, for the satisfaction of the parties, the audience, and the public at large; if sitting with a jury, for the instruction of the jury.

2. Whensoever, in consequence of the non-forthcomingness and non-interrogability of him whose discourse the script appears to be, it is admitted notwithstanding,—the judge having thought fit rather to give admission to it at that time, than to put off the decision in expectation of the forthcomingness and interrogation of the supposed author of such testimonial discourse; let it be a rule of law, that, so soon (if ever) as the means shall exist of performing the interrogation, without preponderant inconvenience in the shape of vexation and expense, such interrogation shall, at the instance of any party in the cause, be performable.

3. If, upon admission and consideration given to any such article of makeshift evidence, it shall seem good to the judge to determine in favour of the party at whose instance such evidence was received,—power should be given to the judge, on the declared ground of the infirmity of this part of the mass of evidence, to require, at the hands of the party in whose favour such judgment is pronounced, such security for eventual restitution ad integrum, and to take such other measures of precaution, by sequestration or otherwise, as may in his judgment be necessary and sufficient to prevent the happening of irreparable damage: such damage as might afterwards be found to have taken place, if, in consequence of the facts brought to light by such subsequent interrogation or any other means, it shall have turned out that the provisional decision so pronounced (as above) was, in point of fact, ill-grounded.

In ancient French law, casually written evidence appears not to have been considered in the light of makeshift evidence: it was considered, on many occasions at least, as more trustworthy than ordinary testimonial (viz. judicially exhibited testimonial) evidence. It appears to have been designated by, or at least comprehended under, the term commencement de preuve par écrit, mentioned in one of the fundamental codes; the business of which is, in certain cases, to exclude testimonial evidence, as insufficient in itself—insufficient, unless fortified by the support of an article of this species of written evidence.

The impropriety of this preference was not quite so great, under that actually established technical system, as it would be under a natural and rational system. In testimonial evidence, under that system, an infirmity Edition: current; Page: [126] produced by the insufficiency of the mode of receipt and extraction there employed, has been already brought to view (vol. vi. p. 399.) It might be superior in trustworthiness to testimonial evidence so extracted, and yet deserve no better appellation than that of a species of makeshift evidence. The species of written evidence in question is what it is—is the same thing, under all systems; but, under the original Roman, the Romano-Gallic system, testimonial evidence was bereft of part of its natural trustworthiness.

Another circumstance that helps to give colour to the preference, and operates even in diminution of the impropriety of it, is, that, in a certain point of view (i. e. with reference to a matter of fact of a particular description,) casually written evidence is really better than testimonial evidence. What it does not prove so well is, the truth of any of the matters of fact, asserted in and by the assertion made by the script. What it does prove, however, and still better than any testimonial evidence (prove, viz. upon the supposition of the authenticity of the script,) is the fact that assertions to that effect were, by the person in question, actually made—viz. made in and by the script at that time. In itself (supposing always the authenticity of it) it has, as to this point, all the trustworthiness that belongs to the best sort of preappointed evidence: the difference lies only in the property of authenticity, the proof of which is, in the case of preappointed evidence, made the object of special care, instead of being left to chance, as in this other case.

In respect of the source, and therefore of the grounds of comparative untrustworthiness or trustworthiness derivable from that quarter, casually written evidence is (it has been seen) susceptible of whatever modifications testimonial evidence is susceptible of. It may be extraneous; it may be self-regarding: self-regarding, it may be self-disserving, or self-serving: extraneous as well as self-regarding, it may be lowered by particular exposure to sinister interest, or by habitual improbity. To all these differences, important as they are, French practice, grounding itself on the Ordonnance, was in a manner insensible. A commencement de preuve par écrit, a something upon paper, there must be: but what that something should be, seems scarcely to have been considered as worth thinking about.

Even a lot of judicial testimonial evidence* appears to have been considered as constituting a commencement de preuve par écrit.

Judicial evidence, and casually written evidence, were thus completely confounded. So loose, in French law, was men’s conception of the different species of evidence!†

The order adopted requires that something should now be said on the subject of ex parte preappointed written evidence. But it is only in respect of its not being with propriety comprisable under the same denomination as extrajudicially and casually written evidence, that it demands a separate head. For, in respect of trustworthiness (i. e. of probative force,) it partakes of the same nature, and the same natural infirmities, as have been seen operating in diminution of the probative force of casually written evidence.

Preappointed it is; preappointed it cannot therefore but be denominated: but, in respect of probative force (not to speak of other properties,) it partakes not, in any degree, of the trustworthy character of the great mass of preappointed evidence; viz. that which is the work, either of all parties concerned in interest, acting in conjunction, or of some single, but naturally impartial, and commonly highly-stationed, hand.

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In comparing ex parte preappointed with casually written evidence, the reader cannot but observe, that unintentional incorrectness is more probable in the case of casually written than of ex parte preappointed evidence, for exactly the same reason which renders such incorrectness still more probable in the case of common conversation than in either, viz. the greater probability of a deficiency of attention.

On the other hand, intentional incorrectness, for the purpose of the characteristic fraud, is, for this same reason, more probable in the case of ex parte preappointed, than it is in the case of casually written evidence of the same import: because, if a man sets himself to forge evidence, the greater apparent trustworthiness of ex parte preappointed evidence, arising from the cause above brought to view, would naturally induce him to give that form, rather than the form of casually written evidence, to the forged document.

The practical rule in regard to ex parte preappointed evidence is the same with that which has been already laid down as applicable to casually written evidence.

Is the person by whom it was committed to writing in existence, and accessible for the purposes of justice? Let him be examined vivâ voce in open court, subject to counter-interrogation; and let not the written evidence be admitted, otherwise than in the character of notes, to assist the memory of the deponent. Is the writer deceased, or the subjecting him to interrogation physically or prudentially impracticable? Admit the document, making allowance for all the circumstances which can operate in diminution of its credibility; hear everybody who can tell you anything concerning the document that can afford you any help in judging of the degree of confidence which it deserves; and make the same provision as in the case of casually-written evidence, for the ultimate interrogation of the writer, should it at any future period become practicable.

The grounds of all these arrangements being precisely the same in the case of ex parte preappointed, as in that of casually written, evidence, it would be superfluous to present them a second time to the reader.

What is meant by adscititious evidence, as also in what its characteristic infirmity consists, has been seen in the preceding chapter. It remains to show, what is the part which ought to be taken in relation to it, by the legislator and by the judge.

Adscititious evidence divides itself into two kinds; which are not indeed mutually exclusive of one another, but which, for reasons that will appear as we advance, require to be distinguished.

1. Evidence inter alios: evidence already exhibited coram judice, in the character of judicial evidence, but in a cause between other parties; i. e. in which the list of the parties on both sides was (either in the whole, or as to some one or more of the persons contained in it) different from the list of the cause in question, the posterior cause.

2. Evidence alio in foro: evidence already exhibited in the character of judicial evidence, but in a cause which (whether carried on by the same list of parties, or by a list in any respect different) was carried on before a different tribunal: understand, by a tribunal in which the rules of evidence are known or suspected to differ more or less from those observed in the tribunal in question.

But the other tribunal, before which the evidence in question had thus on a preceding occasion been exhibited, may either have been a tribunal acting under the government of a foreign state, or a tribunal acting under the same government: and, in the latter case, a tribunal of a different province, or a tribunal of the same province: and in either case, a tribunal governing itself by the same rules of evidence, or a tribunal governing itself by rules of evidence in any respect different.

Between these two last-mentioned modifications of makeshift evidence—viz. evidence inter alios, and evidence alio in foro—there exists a very wide and material difference. Of evidence inter alios, the inferiority, as compared with the opposite case, that of evidence inter eosdem, is produced by an universally operating and irremoveable cause—viz. a deficiency, more or less considerable, in respect of that interest, on which the efficiency of the instituted securities for trustworthiness is apt to be in so considerable a degree dependent.

On the other hand, in the case of evidence alio in foro, the inferiority, real or supposed, depends altogether upon the accidental difference between the rules of evidence actually observed in one court, and those actually observed in another court. Its root lies in the diversities of practice that prevail as between court and court, in matters in which, if it were rational in all, the practice would, with very slight differences, be the same in all. It lies in the wretchedly imperfect state of this branch of procedure (not to speak of any other,) in every nation hitherto existing upon earth.*

The course proper to be taken, in respect to adscititious evidence, will be found to vary Edition: current; Page: [128] according as the document in question is a previous decision, or the whole or some part of the minutes of the evidence delivered in a previous cause.

In respect of the propriety of admission, both these species of adscititious evidence stand nearly on the same ground. Neither of them ought to be admitted, when better evidence from the same source is, without preponderant inconvenience, to be had; neither of them ought to be rejected, when it is not.

There is not, probably, that system of judicial procedure in existence (how bad soever the mode of taking evidence that it employs,) which does not afford a greater probability of right decision than of wrong; and in general the presumption of right decision is a very strong one. True it is, that no decision of a court of justice, certifying the existence of a fact, affords ground for believing it, any further than as such decision renders probable the existence, at the time when it was pronounced, of evidence sufficient to support it: and if the original evidence, on which the decision in the former cause was grounded, were forthcoming in the present, that evidence would be preferable, as a foundation for decision, to the mere opinion formerly pronounced on the ground of that same evidence by a judge. But it scarcely ever happens that evidence which has once been presented, admits of being again presented in as perfect a form as before. All that important species of evidence which is constituted by the deportment of the witness in the presence of the judge, is, in most cases, irrecoverably lost: such evidence as can be obtained now, might not be sufficient to warrant the former decision, and yet the decision, when pronounced, may have been perfectly borne out by the evidence on that occasion adduced. On the other hand, it is true that, in very many cases, by recurring to the original sources, sufficient evidence of the fact might even now be obtained, not, however, without more or less of delay, vexation, and expense: for the avoidance of which, it is often proper that the previous decision, though an inferior kind of evidence, should be received as a substitute, in the place of a superior kind.

As to the minutes of the evidence delivered in the former cause, it is sufficiently manifest that they ought not to be admitted, if recurrence to the original sources of evidence be practicable, without preponderant inconvenience,—if the witnesses in the former cause be capable of being examined, or such written or real evidence as it may have afforded be capable of being exhibited, in the present: unless when there may be a use in comparing two testimonies delivered by the same witness on two different occasions. But if (no matter from what cause) recurrence to the original sources be either physically or prudentially impracticable, the minutes of the former evidence should be admitted, and taken for what they are worth. If the evidence in question be oral testimony, being generally upon oath, subject to punishment in case of intentional falsehood, and to counter-interrogation, it is at any rate better than hearsay evidence, which, at its origin, had none of these securities: if it be real evidence, the official minutes of it are the very best kind of reported real evidence:—of which hereafter.

A question of greater nicety is, whether in any, and, if in any, in what cases, adscititious evidence shall be taken for conclusive?

In the case of minutes of evidence, the short answer is, never. The testimony of a witness, or of any number of witnesses, even if delivered in the cause in hand, and under all the securities which can be taken in the cause in hand for its correctness and completeness, ought not to be, nor, under any existing system of law that I know of, would be, taken for conclusive: much less a mere note of the testimony which they delivered on a former occasion, subject perhaps, indeed, to the same set of securities, but perhaps to a set in any degree inferior to those which there may, in the cause in hand, be the means of subjecting them to.

The case of a decision is more complicated. For the purpose of a prior cause, a decision has been given which supposes proof made of a certain fact: and the question is, whether, on the ground of such decision, such fact shall be taken for true—shall be considered as being sufficiently and conclusively proved—for the purpose of the decision to be given in a posterior cause?

It must of course be assumed, that the prior decision necessarily supposes evidence of the fact in question to have been presented to the judge, sufficient to create in his mind a persuasion of its existence: for there would be manifest impropriety in making the decision conclusive evidence of any fact not absolutely necessary to its legality; with whatever degree of probability the existence of such fact might be inferred from it.

1. Let the parties be the same; and the tribunal either the same tribunal, or one in which the same or equally efficient securities are taken for rectitude of decision. In this case, unless where a new trial of the former cause would be proper, the decision in the former cause ought to be taken as conclusive evidence (for the purpose of the posterior cause) of every fact, proof of which it necessarily implies. A lawyer would say, Quia interest reipublicæ ut sit finis litium. Not choosing to content myself with vague and oracular generalities, which are as susceptible of being employed in defence of bad arrangements Edition: current; Page: [129] of procedure as of good ones, I place the propriety of the rule upon the following more definite ground: that, as every person who would have an opportunity of applying the security of counter-interrogation in the second cause, has had such an opportunity in the first,—and as the rules of evidence which were observed in the former trial, were, by supposition, as well calculated for the extraction of the truth, as those which would be to be acted upon in the present,—the judge on the second occasion would have no advantage, in seeking after the truth, over the judge on the first, to counterbalance the disadvantage necessarily consequent upon lapse of time: and the decision of the first judge (though strictly speaking it be only evidence of evidence) is more likely to be correct, than that which the second judge might pronounce on the occasion of the posterior cause.

The case is different if fresh evidence happen to have been brought to light subsequently to the first trial, or if there be any reason for suspecting error or mala fides on the part of the first judge. But, in either of these cases, a new trial of the former cause would be proper. If the fact be sufficiently established for the purpose of the first cause, it is sufficiently established for the purpose of any subsequent cause between the same parties. It is only when there appears reason to think that it was improperly considered as established in the first cause, that there can be any use in going through the trouble of establishing it again in the second.

The above remarks apply also to the case in which the parties to the second cause are not the actual parties to the first, but persons who claim in their right—their executors, for example, or heirs-at-law; or even persons claiming under the same deed, or, in any other way, upon the same title; all those, in short, who in English law language are quaintly called privies in blood, in estate, and in law: for though these have not had an opportunity of cross-examining the witnesses in the former cause, other persons representing the same interest have.

2. Suppose the parties different, that is, with different interests, and the same reasons do not apply. The deficiency in respect of securities for trustworthiness, which constitutes the inferiority of adseititious evidence, may now have place to an indefinite extent, and is always likely to have place to some extent. It will very often happen that there was some part of the facts, known to the witnesses in the former cause, which would have made in favour of one or other party to the present cause; but which did not come to light, because, there being no one among the parties to the former cause in whose favour it would have made, it found no one to draw it out by interrogation. The former decision, therefore, although conclusive against the parties to the former cause, and all who claim under them, ought not to be conclusive against a third party. If it were, an opportunity would be given for a particular modification of the characteristic fraud: a feigned suit instituted by one conspirator against another, and judgment suffered by the latter to go against him, with the view of establishing a false fact, to be afterwards made use of in a suit against some other person.

The above observations constitute what foundation there is for the rule of English law, that res inter alios acta is not evidence:—of which hereafter. Note, en passant, the character of jurisprudential logic: a decision inter alios is not conclusive evidence, therefore not admissible.

3. Lastly, suppose the tribunals different, and governed by different rules: and let the rules of the tribunal which tried the first cause be less calculated to insure rectitude of decision than those of the tribunal which tries the second. In this case, with or without the deficiency in point of security arising from the difference of the parties, there is at any rate the deficiency which arises from the imperfection of the rules: the impropriety, therefore, of making the decision conclusive, is manifest. Its probative force will evidently vary, in proportion to the imperfection of the rules which govern the practice of the court by which it was pronounced; always considered with reference to the main end—rectitude of decision.

The probative force will be greater, cæteris paribus, when the court from which the evidence is borrowed is in the same, than when it is in a different, country; on account of the greater difficulty, in the latter case, of obtaining proof of the existence of the characteristic fraud. But this presumption is much less strong than that which arises from a difference in the mode of extraction.

We shall see hereafter to how great an extent nearly all the above rules are violated in English law.

CHAPTER III.: OF UNORIGINAL EVIDENCE IN GENERAL.

The quality of unoriginality seems applicable to an article of evidence in either of two cases: 1. Where it is so with relation to persons,—to persons considered as sources of the evidence; 2. When it is so in respect of signs.

It is so as to persons, wherever the perceptions stated by the person whose evidence is rendered present to the senses of the judge, are stated by him as being not his own perceptions or opinions, but perceptions or opinions communicated to him by some other Edition: current; Page: [130] person, as and for the perceptions of that other. Had the perceptions or opinions been stated by him as his own, they might have been termed original: not being stated by him as his own, they cannot with propriety be termed original—they are termed not original, but unoriginal. In himself, if he says truly, they did not originate; but in the other person so spoken of.

The evidence is unoriginal in respect of signs, when the signs (i. e. the collection of visible and permanent signs, viz. written characters) presented to the senses of the judge, are not the same collection of signs by which the discourse in question stood expressed, when consigned to writing for the first time: not these, but some others: which,—having been transcribed from those, in the design of rendering (so far as both go) the signification of the copy thus made exactly the same as that of the original,—may accordingly be termed transcriptitious.

The evidence orally delivered, and of the nature of what is called hearsay evidence;—the evidence delivered in writing, and of the nature of a transcript:—in both these cases, it may alike be termed unoriginal.

In both instances it is understood at once, that, in point of probative force, the unoriginal evidence will be in a greater or less degree inferior to the original. But, in the two cases, the defalcation made by the circumstance of non-originality from the probative force of the evidence, will immediately be seen to be, generally speaking, widely different.

Such as our conceptions are, such ever must language be. In vain, on any subject, will that man seek to add anything material either to the correctness or to the amplitude of the current stock of conceptions, who fears the reproach of the endeavour to make additions to the language. A subject must have a name, before anything can be predicated of it: and of the subject, be it what it may, till something is predicated, nothing will be understood.

Among non-lawyers, as well as among lawyers, the word hearsay is already in use. Among lawyers, the word original, and the word copy, are in use. With so slender a stock of the instruments of discourse, has the business of argumentation and thence the business of judicial decision, been hitherto carried on in this part of the field of law.

Even of so slender a stock—a stock comprised of three words, and no more—there exists one which is not fit for use. By reason of its ambiguity, the word copy is not fit for use. Does it mean transcript, in contradistinction to the original script? or does it mean exemplar? as in the case when, in a mass of letter-press, all may be equally originals, or all equally transcripts.

Such as yet is the supply: here follows a part at least of the demand.

In the case of want of originality (it has already been observed) the seat of the defect may be in the person by whom the evidence is delivered, or (in the case when at the time of delivery it wears the form of writing) in the collection of signs of which the writing is composed.

When the seat of the defect is in the person—when, upon his own showing, the deposing witness is a different person from him by whom the matters of fact in question were observed,—in this case there are, at least, two persons, upon whose trustworthiness the probative force of the testimony depends—two persons so connected, that, by the reduplication, the probative force, far from being increased, is lessened.

Of the deposing witness the existence is, by the supposition, certain: of the alleged percipient witness—of any percipient witness, the existence is necessarily and constantly a matter of doubt. On this account it is, that, without some such prefix as the word supposed, he ought never to be mentioned.

Instead of supposed percipient witness, the occasion may sometimes require us to say, the supposed extrajudicially stating or narrating witness: for neither are the terms synonymous, nor the persons in every case the same.

In the character of a percipient witness, a man will not, generally speaking, have made himself known to the deposing witness, unless by having made himself an extrajudicially narrating, reporting, or stating witness. But, in the character of an extrajudicially narrating, reporting, or stating witness, a man may easily have certified himself to the deposing witness, without having been a percipient or observant witness.

Notions other than such as can, strictly speaking, be termed perceptions, may moreover be not altogether without their use in evidence: and, useful or useless, they may serve to constitute the matter of which evidence is composed.

Of the persons through whose mouths the supposed statement of the supposed percipient or originally extrajudicially narrating witness may, from one to the other, have passed, or be supposed to have passed, the number may, to any amount, be great. Under French judicature, in the famous case of Calas, between the supposed precipient and the deposing witness there were no fewer than five.

So many of these supposed successive narrators (including the deposing witness,) so many media through which the supposed perception has been transmitted, in its way to the ear or the eye of the judge; so many Edition: current; Page: [131] media; of which one alone is judicial, the others extrajudicial.

By every extrajudicial medium, the evidence is removed—removed by one remove—from that degree of proximity which it were desirable it should possess, and which in the case of ordinary evidence it does possess, with reference to the eye or the ear of the judge.

Equal to the number of media, as above, may be said to be the number of degrees: equal to the number of media and degrees minus one, may be said to be the number of removes.

Media, degrees, removes: with equal propriety, and in the same sense, though with very different effect, and with much less force, does this nomenclature apply to the case of transcriptitious evidence.

And thus it is, that, in either case, constitutive of so many modifications or species of unoriginal evidence, we have unimedial, bimedial, trimedial, and so forth; in a word, multimedial evidence.

The two sources or causes of inferiority, the two modes of unoriginality, may be combined in the same lot or article of evidence.

Thus, for species or modifications of multimedial evidence, we have simple (composed either of multi-personal alone, consisting of person supposed to have spoken after person, or of transcriptural alone) and complex, composed of both those modes of unoriginality put together.

Not of personal evidence alone, but of real also, may originality and unoriginality be both predicated.

Real evidence is original—is originally delivered—when the thing which is the source of it is itself presented to the senses of the judge: unoriginal, when all the conception he can entertain concerning it is that which is conveyed to his mind through the medium of the testimony of a witness—commonly a deposing witness.

The shape in which the testimony of the deposing witness is conveyed to the senses of the judge, may be either the oral or the written shape. Hence it is that, when there has been no transcription, scriptitious may stand exactly upon a footing with hearsay, as well as with original evidence.

When the testimony, being unoriginal, is composed of that of two persons, one as it were behind the other,—the form in which the respective testimonies have been delivered, viz. oral or scriptitious, is a circumstance by which differences, which require to be noted, may be produced in the probative force of the compound testimony.

In the case where the supposed original evidence is of the real kind; in that case, the species of inferiority which, in the case of personal evidence, requires two persons, two witnesses, to the production of it, is produced by the testimony of a single witness, interposed between the thing which is the source of the evidence and the senses of the judge.

After these explanations, the following modifications of unoriginal evidence may, it is supposed, be rendered sufficiently intelligible by the denominations here employed for giving expression to them.

This is the only species of unoriginal evidence which the term hearsay evidence is, strictly speaking, competent to the expression of.

2. Supposed oral through scriptitious.

3. Supposed scriptitious through oral.

4. Supposed scriptitious through scriptitious: in other words, transcriptitious evidence.

In all four cases, the supposed original testimony must, in whichever shape delivered, be supposed to have been extrajudicially delivered.

In all these four cases, an interval of considerable length must, moreover, be supposed to have intervened between the supposed extrajudicial statement and the judicial one. Suppose no such interval, and the evidence stands, to every practical effect, undistinguishable from original evidence.

1. Thus, in the case of supposed oral through oral. A percipient witness, being in or near the judicatory, delivers his testimony in a low tone: and this evidence, not being sufficiently audible, is, by some other person (suppose an officer of the court,) repeated in a more audible tone, for the convenience of the judge.

2. So again in the case of supposed oral through scriptitious. This would be the common case of note-taking. Deposition of a percipient witness, extracted vivâ voce before a judicatory; notes or minutes thereof taken by a clerk, and the minutes delivered in to another. In this case, the word supposed would (it is evident) be regarded as superfluous or ill-placed. The note-taker, unless specially interrogated, would not be considered in the character of a distinct deposing witness.

3. So again in the case of supposed scriptitious through oral. This would be no more than the common case of written evidence read in court: for example, an affidavit. Here, too, the use for the adjunct supposed vanishes.

4. Lastly, in the case of supposed scriptitious through scriptitious. The witness having read to himself on one day a document capable of being adduced in evidence, parts with it immediately out of his hands. On the next day, from memory, he, in a judicial Edition: current; Page: [132] form, interrogated or not, writes an account of what, according to him, are the contents. This is supposed scriptitious through scriptitious; and he, the writer, is a witness. But while he is thus writing his account of the contents, suppose the paper to be lying before him. This is no longer the case of a reporting witness, simply reporting (if extrajudicially,) or deposing (if judicially,) to the contents of a statement made by another person, who is considered in the character of a percipient and extrajudicially narrating witness: it is the case of a scribe; and according as in his script words the same as those employed in the original, or words more or less different, are employed, his script is a transcript, an extract, or an abridgment.

Thus various and thus faint are the shades of difference by which one modification of unoriginal evidence is distinguished from another.

All modifications of unoriginal evidence that are of the nature of, or bear similitude to, hearsay evidence, as above, have this in common,—that for every remove (mendacity and fraud out of the question) they afford an additional chance of incorrectness and incompleteness.

But besides this,—supposing admission to be secured to them, and known to be so,—they afford, all of them, invitation to one and the same plan of fraud; which fraud is moreover equally applicable to casually-written and ex parte preappointed evidence. Secure, not only against punishment, but against adverse interrogation, the extrajudicial narrator and supposed percipient witness delivers his statement vivâ voce, or in writing, as the case may be; that statement being tinctured with mendacity, in the shape that seems best adapted to the sinister purpose, whatever that may be. The extrajudicially narrating witness has contrived, for the purpose, to place himself (if he be not so already) out of the reach of punishment. The judicially deposing witness, so long as he reports nothing but what has, to his knowledge, been expressed by the extrajudicially narrating witness, is not punishable; since, by the supposition, he says nothing that is not true.

So many features belong in common to extrajudicially written and to hearsay evidence, that what would have been necessary to have been said on the subject of this last-mentioned species of evidence, had it been considered before the other, is, by what has been already said on the subject of the other, rendered unnecessary to be said here.

It is of the essence of hearsay evidence to present to the notice of the judge two distinct persons in the character of witnesses: a supposed percipient and extrajudicially narrating witness, stating, at some antecedent point of time, in the hearing of any person not on that occasion invested with the authority of a judge, some matter of fact as having had place; and a deposing, or say judicially narrating witness, who hears testimony, not to the truth of that matter of fact, but to its having actually been asserted, on the extrajudicial occasion in question, by the extrajudicially stating or narrating witness.

So distinct are the two characters, and, to the purposes of truth and justice, so material to be distinguished, that, while the one (viz. that of the deposing witness) is in every individual instance filled by a really existent person,—the other (viz. that of the percipient or extrajudicially stating or narrating witness) may happen to be a character altogether fictitious. The person, it may happen, is fictitious; or, though the person be at the time in question a person really existing, the statement or narration, and alleged perceptions, attributed to that really existing person, may on the whole, or as to any part, be fictitious.*

To the statement or narration judicially delivered by the deposing witness, and to that alone, belongs therefore, in propriety of speech, the denomination of hearsay evidence.

Edition: current; Page: [133]

Supposed extrajudicially stating or narrating witnesses may have stood in a series of any length, one behind another. The causes of untrustworthiness applying to every human being, and, to every being of which nothing more is known than that he or she is human, with equal force,—it is evident that, the longer the line of these supposed witnesses, the less is the probative force of their supposed testimony.

Of the case which exhibits more such supposed extrajudicial witnesses than one, what little requires to be said, will be said in another place:* throughout the course of the present chapter, no more than one will be supposed. Of whatever is said under this head, it will be easy to make application to the whole possible series of those other cases.

Supposing (as above) one, and no more than one, supposed extrajudicially stating or narrating witness,—the character of the testimony will be found to admit of nine variations: the supposed testimony of the supposed extrajudicial witness, under each of three characters, being capable of being deposed to by the deposing witness under each of the same three characters. Thus,

I. By an extraneous deposing witness may be related the supposed extrajudicially delivered testimony of the three sorts of extrajudicial witnesses, viz.

1. Another extraneous witness.

2. A party on that side of the cause on which the hearsay evidence is not called for.

3. A party on that side of the cause on which the hearsay evidence is called for.

II. By a party on that side on which the hearsay evidence is not called for, may, in like manner, be related the supposed extrajudically delivered testimony of the same three descriptions of persons, viz.

1. An extraneous witness.

2. Another party on that side of the cause on which the testimony of the hearsay witness is not called for.

3. A party on that side of the cause on which the hearsay evidence is called for.

III. Lastly, by a party on the side of the cause on which the hearsay evidence is called for, may, in like manner, be related the supposed extrajudicially delivered testimony of the same three descriptions of persons, viz.

1. An extraneous witness.

2. A party on that side of the cause on which the hearsay evidence is not called for.

3. Another party on that side of the cause on which the hearsay evidence is called for.

In the case of hearsay evidence, the particular description of the characteristic fraud above mentioned (the fraud applying in common to every species of makeshift evidence) is as follows. Under the assurance of his not being subjectable to eventual punishment or to counter-interrogation, a man utters vivâ voce, on some extrajudicial occasion and place, a statement or narration, of the incorrectness or partial incompleteness of which he himself is conscious.†

In regard to admission, and the terms on which it shall take place, the rules which have been seen applying to extrajudicially written evidence, will be found to apply to hearsay evidence, without any difference considerable enough to render it worth while to exhibit those rules in the case of hearsay evidence, at the same length as those regarding extrajudicially written evidence.

The considerations from which, in the character of reasons, these rules were deduced, being the same, so of course will be the rules.

The only difference which there is, turns, so far as concerns admission, upon the magnitude of the danger (the danger from admission) under the two species of makeshift evidence: of which difference the delineation will constitute the matter of a following chapter.

In rule the sixth and last may be seen that Edition: current; Page: [134] which presents itself as the only instance in which the reasons in favour of the admission recommended by it seem to require, in the case of hearsay evidence, ulterior delineation, over and above such as correspond with those that have been already brought to view under the head of extrajudicially and casually written evidence.

Insulated, the alleged extrajudicial statement or narration of an alleged percipient witness will be little in danger of obtaining credence to such a degree as, if false, to be productive of deception. In connexion with other evidence, it may be necessary for the explanation and completion of an aggregate body of connected evidence: as in the case of a chain of facts following each other in a series, and composing together a body of circumstantial evidence.

Such may, in some degree, be the use of the makeshift document, even in the case of extrajudicially and casually written evidence. But more particularly it may be observed, in favour of the proposed admission of hearsay evidence, that if, on the occasion of what passed in a conversation between two interlocutors, the discourse of one be excluded, that of the other will frequently be unintelligible: an incident, the probable frequency of which is the same, whether (relation had to that one of the interlocutors whose discourse it might be proposed to exclude) the tendency of the discourse were self-disserving, or self-serving.

CHAPTER V.: INSTRUCTIONS CONCERNING THE PROBATIVE FORCE OF EXTRAJUDICIALLY WRITTEN AND HEARSAY EVIDENCE.*

That which ought in scarce any case to be done, and is most abundantly done (it has already been observed,) is, to put an exclusion upon evidence, on the ground of danger of deception. That which ought throughout to be done, and nowhere has been done, is—if legislation be the work of reflection, and reflection pointed to right ends—to give the benefit of it, in the form of instructions, to the judge.

To bring to view such considerations as, on the occasion in question, present themselves as capable of being, in that character, assistant to the judge, if not in the way of information, in the way of reminiscence,—is the object of the present section.

I. Supposing admission given to both, and on the same conditions,—hearsay evidence is less likely than extrajudicially written evidence to have originated in the characteristic fraud: and (in so far as its incorrectness or incompleteness is regarded as not to be apprehended otherwise than as the result of such plan of fraud) is less untrustworthy—may with propriety be considered as acting with a greater degree of probative force.

The only case in which, from either species of makeshift and thence uninterrogable evidence, any advantage would be to be hoped for, is that of a posthumous advantage—an advantage not looked to as capable of accruing during the lifetime of the contriver, to be reaped by the contriver himself, but, after his death, to his family, or some other person whose interests are dear to him. For as to the man himself, if he be in esse, a reasonable condition to require of him (wheresoever he be, at home or abroad) is, that he submit to counter-interrogation; which if he do, his doing so makes, in both cases, an end of the makeshift evidence.

In this case, to make a species of evidence which shall be exempt from counter-interrogation as well as eventual punishment, he has his choice between casually written evidence and hearsay evidence.

Suppose him to choose casually written evidence. This (it being by the supposition admissible) is that one of the two that will afford him the best chance.

If he writes it himself, in the name of another person not privy, this will be an act of forgery; a punishable offence, committed, in the first instance, in prospect of a benefit expected to accrue to others, and at a time when he will not be able to enjoy it.

If for the writing it he engages an assistant, who is privy to the fraud, and who writes it in his own character,—here, indeed, is no forgery, but here is a fraud with an accomplice, in whose power the contriver puts himself.

If he writes it himself in his own person,—here is no forgery, nor is there any person in whose power he puts himself. This, supposing both species of makeshift evidence receivable (viz. casually written and hearsay,) Edition: current; Page: [135] is, in both points of view (probability of success, and security against punishment,) the most eligible.

Thus stands the plan of fabrication by means of makeshift evidence, on the supposition that casually written evidence is to be the instrument employed in it.

In this way, a man may use his endeavours to render an undue service to persons dear to him, even without subjecting the evidence to the discreditive observation of its being self-serving evidence. If it be a case in which their title cannot be derived but through himself, they taking in quality of his representatives, no: but the right which he thus fraudulently conveys may be drawn by him from another source. A father, for example, may, by a fraud thus shaped, convey to his son an estate derived, not from the father’s side, but from the mother’s.

Suppose revenge, or gratification of causeless enmity, the posthumous benefit—the sole benefit—in view. Here the testimony stands not exposed to any such discreditive observation as the above.

In this may be seen by far the most promising, in other words the most deceptitious, shape, which the characteristic fraud can assume. If in this it be not too deceptitious to be admitted, in no other can it be.

Hearsay evidence renders an assistant necesary. The contriver of the fraud utters the statement or narration in the hearing of the assistant: so long as the contriver lives, the assistant is silent; for such silence is what (as above) the nature of the fraud requires: the contriver dead, then, for the purpose of giving effect to the benefit which (though to him a posthumous one) the contriver had in view, comes the assistant forward with his hearsay evidence.

The inferiority of this species of makeshift evidence, in comparison with the other, may be seen in more points of view than one. If the assistant dies before the contriver, or (though not till afterwards) before his hearsay evidence has been judicially derived,—the plan is defeated: so if he expatriates, or forgets his lesson, or quarrels with the contriver. So much as to comparative probability of success. Meantime the contriver exposes himself to loss of character, and (if the law has done its duty) to punishment, through the infidelity of his assistant.

The assistant, it is true (so it may easily be managed,) need not be privy to the fraud: to the intended assistant the false story is narrated as if it were true. In this way, danger of punishment through infidelity is avoided; but danger of ill success, by reason of death and expatriation, remain the same; danger of ill success through quarrel, not much less. But the danger from forgetfulness is much greater, the cause of remembrance being wanting. Taking a memorandum might, it is true, be recommended by the contriver to the intended innocent assistant, or a memorandum put into his hand. But this circumstance would be still more likely to be remembered than any other; and in the mind of the judge, if not in that of the innocent assistant, in his character of deposing witness, it would cast a shade of suspicion upon the scheme.

The number of innocent persons thus taken for intended assistants, might be multiplied to any amount; but by no such multiplication could hearsay evidence, in the character of an instrument of this fraud, be raised to an equality with a letter or memorandum in writing, framed with a view to its officiating in the character of an article of extrajudicially written evidence.

Of the authenticity of a script, framed for any such express purpose, proof cannot, in the nature of the case, be wanting. Where adequate cause of rememberance is wanting, a story told is liable to be lost, whatsoever be the number of the hearers. In point of probability of remembrance, the difference between the seeing of a fact, and hearing a relation of it, is plainly infinite.

II. Setting aside, in both instances, the characteristic fraud, and purposed mendacity, to whatever purpose directed, hearsay evidence seems in general more likely to be fainted, and moreover in a higher degree, with material incorrectness and incompleteness, than extrajudicially written evidence is.

Extrajudicially written evidence presents but one witness in whose person the causes of untrustworthiness, intellectual and moral (sinisteraction of interest included,) are liable to have place. It requires, indeed, to be authenticated; a distinct purpose, for which evidence is necessary: but, in general, authentication is a matter little exposed to doubt; and, moreover, proveable by witnesses in abundance, none of whom are exposed to the action of any of the causes of untrustworthiness.

Hearsay evidence presents always two witnesses, viz. the deposing witness, and (unless when the deposition is a mere fiction) the supposed extrajudicially stating or narrating witness: two witnesses, and the causes of untrustworthiness repeatable upon each.

In case of mendacity on the part of the deposing witness, the evidence is exposed to a cause of falsehood, against which the extrajudicially written evidence is comparatively secure. The fact, that, by such or such a person, such or such words, or words to such or such an effect, were spoken, is a fact of the evanescent kind,—not of a nature to leave behind it, in any case, any physical traces, capable of operating (if it be true) in confirmation of it, in the character of circumstantial evidence.

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Even in case of veracity on the part of the deposing witness, the evidence is exposed to a cause of error to which extrajudicially written evidence is not exposed. In the case of extrajudicially written evidence, the discourse being in written or other permanent characters, the tenor of it is fixed: whereas, in the case of hearsay evidence (especially if the discourse run into length,) it is frequently impossible for the deposing witness to speak to the very words; and then comes the uncertainty whether, of the words really spoken, the purport attributed to them by the deposing witness be a faithful representation—whether, and how far, the interpretation put upon them by the deposing witness is correct.*

To multiply in this way the number of hearers, not under any engagement of secrecy, will be to multiply the number of persons by whose conversation the story may be conveyed to some who will know it to be a lie, viewing at the same time in the person of the contriver the author of that lie. Thus, of a story which can be of no use to his purpose till after his death, the credit will have been destroyed in his lifetime.

Upon the whole, it appears that, so long as the supposed extrajudicial witness is not exempted from cross-examination, mischief in the way of misdecision would often ensue from the exclusion either of casually written or of hearsay evidence, and no adequate danger is to be apprehended from the admission of it.

If, indeed, the extrajudicial witness were exempted from cross-examination, and his unsanctioned and unscrutinized statement (or, in the case of hearsay evidence, his supposed statement) were received during his lifetime in the place of his judicial testimony, much danger of misdecision would be the result:—for, in this case, as any sort of man, the most untrustworthy, might, for the purpose of any suit whatsoever, without any the smallest danger to himself, make evidence, either for his own purpose, or for the purpose of any one who suborned him,—such evidence, being on every occasion at the command of any person, would, in point of trustworthiness, in the eye of reason, be worth nothing. If, then, on this consideration, it were never to receive credence in any case, justice would be deprived of the benefit of it in all such cases in which, had it been adduced, it would have been true, and (as such) conducive to the ends of justice. If, on the other hand, it were in general to be admitted, and receive credence, it would be but too apt to be received in cases in which it would be false and deceptitious; the known security with which it might be manufactured and exhibited, would occasion its being manufactured in a multitude of instances without stint. False claims, in a number altogether unlimited, would be set up on the mere ground of the support to be given to them by this evidence: and, since the nature of the evidence admits scarce any means or chance of distinguishing false from true, the number might be so great, that, in every instance in which credence were given to this sort of evidence, deception and consequent misdecision on the part of the judge would be a result more probable than the contrary.

Here, then, would be a double mischief: the two opposite mischiefs of undue credence and undue discredence, running on at the same time. Out of twenty false claims, set up on the ground of this evidence, suppose it to obtain credence in one only, and to be discredited in the nineteen others. The amount of the injustice thus done in the one case out of twenty, would itself be an enormous evil: this evil would be the result of undue credence. But the nineteen instances in which it were discredited, would be sufficient to throw a general, and to a considerable degree indiscriminating, discredit upon this species of evidence: the consequence would be, its being discredited in a number of instances in which, it being true, the discredit thus cast upon it would be productive of misdecision and injustice.

True it is, that—on the supposition that it were generally known to be admissible, when, from death or other causes, the extrajudicial witnesses were no longer exposed to cross-examination—motives for the fabrication of it, in the hopes of its serving a man’s purpose after his death, would not be altogether wanting. But as, in such case, the inducement for the fabrication of it would, in comparison, be extremely feeble: the quantity of it fabricated, if any, would be proportionably inconsiderable. The instances, if any, in which it were thus fabricated, and false, would scarcely be equal in number to the instances in which it would be true, and conducive, or even necessary, to the fulfilment of the ends of justice. But in the instances in which it were false, it would not follow by any means, that because admitted it must obtain credence and be regarded as conclusive. The possibility of its having originated Edition: current; Page: [137] in the characteristic fraud, would be an obvious objection—a species of psychological circumstantial evidence, that could never fail to be opposed to it: and, being by the supposition false, it would find itself counter-evidenced and opposed at the same time by as many true facts as happened to be brought forward by whatever true evidence the cause happened to afford. Under these circumstances, there seems little danger of its being taken for more in each given case, than in that same case it were really worth: no more in the case of this transmitted evidence, than in the case of immediate evidence.

CHAPTER VI.: OF SUPPOSED WRITTEN EVIDENCE, TRANSMITTED THROUGH ORAL; OR MEMORITER EVIDENCE.*

The supposed written evidence may either be of the nature of casually written evidence, or of written preappointed evidence (private or public, contractual or official.)

Its trustworthiness will accordingly be varied according to the nature of its supposed source: the medium through which it is transmitted, being supposed the same in both cases.

When the alleged writing (supposing it oral) is of the nature of casually written evidence, the report thus made of it from memory, it is evident (be the reporter who he may, be he in all respects ever so trustworthy,) must in trustworthiness be inferior to what the article of casually written evidence would have been, had it itself, and without passing through any such medium, been presented to the senses of the judge.

In the case of memoriter evidence of this description, the characteristic fraud is this:—For his own advantage, or for the advantage of a person dear (privy or not privy,) Stellio, having fabricated or altered a script, puts it in the way of Memor, and then withdraws it again; to the end that Memor, having informed himself of the contents, may, on being judicially examined, report them in the character of a memoriter witness.

In respect of trustworthiness (the characteristic fraud out of the question,) in a general point of view, this species of transmitted evidence may be apt to appear scarce distinguishable from the more ordinary modification, supposed oral through oral, i. e. hearsay evidence. In the supposed source of information consists the only difference: the medium, the chief source of deception, is the same.

On a closer examination, it will present some not altogether inconsiderable differences, resulting principally from the nature of the script, as above diversified.

To understand the relation, and measure the difference, a distinction must be made between the danger of mendacity, and the danger of incorrectness.

In the case of a supposed script amounting (if genuine) to no more than an article of casually written evidence, much of course will depend upon the particular nature of the script. If it be altogether anomalous, such as a letter, or a loose memorandum made not in the way of any regular business,—the difference in this respect between feigned memoriter evidence, and feigned hearsay evidence, will be scarce discernible. If it belong to any regular class of scripts, such as the shop-book of a shopkeeper, or any book of accounts kept in regular form, though by a person not embarked in any profit-seeking occupation,—the sphere of mendacious invention will be proportionably confined. To obtain credit, the supposed script, according to the mendacious account given of it, must wear a certain degree of conformity to scripts of the like sort: it must be so far consistent with those true facts which the nature of the case cannot but afford, as not to be exposed to receive contradiction, on the ground of improbability, from circumstantial evidence.

In the case where the script was, or (if it had been really existing) would have been, an article of preappointed evidence—say an article of contractual evidence (a deed of conveyance)—the field of mendacious invention is in general still more narrowly limited: though, in this respect, much of course will depend upon the nature of the deed: and so in the case of official evidence.

In the case of an article of contractual evidence, a man’s chance for succeeding in his plan of imposition will depend not only on his acquaintance with the circumstances of the parties or supposed parties, but on his acquaintance with the dispositions made on that subject by the law.

In like manner, in the case of an article of official evidence, his success will naturally be more or less dependent on his acquaintance with the course of business as carried on in the particular office.

By this necessity of appropriate information, as a condition sine quâ non to the planning Edition: current; Page: [138] and carrying on an imposition of this kind with any promising prospect of success,—not only is the source of danger reduced to the testimony of a comparatively narrow description of persons, but to that sort of description of persons who, by reason of mental culture and situation in life, may naturally be expected to be above the ordinary level in point of trustworthiness.

In respect of the danger of incorrectness (mendacity out of the question,) where, as here, the source of the evidence is a discourse fixed by the permanent signs of written discourse, it seems to possess a probative force considerably stronger than ordinary hearsay evidence never consigned to writing.

In the case of a purely oral discourse, the original received its birth and death at the same instant: the impression left by it on the conception, however faint, cannot at any subsequent time be strengthened: however incorrect, it can never afterwards be corrected. In the case of a discourse committed to writing, what is possible, indeed, is, that the glimpses caught by the eye may have been as faint or as incorrect as the glimpses caught by the ear, in the other. On the other hand, nothing hinders but that the view taken of it may have been as attentive, as correct, and as often repeated, as could be desired.

For the reason given above, the chances in favour of correctness may naturally be expected to be in general somewhat greater in the case of the preappointed, the contractual or official script, than in the case of the purely casual article of written evidence. In the case of the contractual species of script (the deed of conveyance more especially,) the memory of the idiosyncratic particulars will naturally (to a professional, or in other words practised, mind) be assisted, and the field of recollection narrowed, by the general form of the species of deed—by those parts of the context which belong in common to deeds of that sort.

If the person by whom the minute is supposed to have been taken, be an official person, acting in virtue of his office,—and the discourse which he is committing to writing be the discourse of a person by whom, on the delivery of it, he is addressed in his official character,—such evidence is a species of preappointed evidence—preappointed official evidence: and, in a word, if the purpose for which, or occasion on which, the minute is thus made, be a judicial purpose or a judicial occasion, the discourse thus orally exhibited and minuted is neither more nor less than a mass of judicial testimony. The minutes taken of the deposition of a judicial witness, whether spontaneously exhibited, or extracted by interrogatories,—taken whether by the judge himself, or by a scribe of his in his presence,—belong to this head of evidence.

If the person by whom the minute is supposed to have been taken, be not an official person, this species of evidence is of a nature that presents itself as having been already included (or at least as capable of being included) under the denomination of casually written evidence.

If, in a memorandum or letter, mention be made of a supposed fact, that fact may as well consist of a discourse supposed to have been holden by another person, as of anything else. If mentioned as being holden by another person, it may be mentioned as being holden by him either at the very time of its being thus committed to writing (as in the case of a judicial deposition or examination, as above mentioned,) or at any preceding point of time, separated from that point of time by any distance.

In general, the judicially scrutinized testimony of any given person will, in all points taken together, be more trustworthy than the casually written evidence of the same person—a memorandum or letter written by him. Yet instances are not wanting in which casually written evidence will present a preponderant probability of standing the closest to the truth.

In the presence of Oculatus, a transaction takes place, of which, on that same day, he gives an account in a letter to a friend. Suppose Oculatus a man of probity, and either not exposed to the influence of any sinister interest, or too firm to be drawn aside by it; and suppose, at the same time, that either discernment or accident has rendered his account of it, not only correct as far as it goes, but complete; nothing can be more evident, than that such a letter will present a much more satisfactory account of the matter than could reasonably be expected from the judicial testimony of the same person, examined, though in the best mode, at a distance say of twenty or thirty years after the event.*

Cæteris paribus, the chance which an article of casually written evidence has of being superior in trustworthiness to the judicial testimony of the same person, will be in the direct ratio of the interval of time elapsed between the day of the event and the day of the examination.†

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The length of time, as above, being given,—the advantage of the casually written evidence, in comparison with the judicial testimony, will be inversely as the apparent relative importance of the transaction, the importance which it possesses in his eyes. The real absolute importance will no otherwise contribute to strengthen in his mind the impression made by it, than in as far as its eventual importance happens to be apparent to him, and to be the same in the instance of that particular individual as it would be to an average individual in his place.

Nor, in ordinary instances at least, will the importance of the fact, any other than its relative importance with respect to the percipient witness himself (that is to say, its connexion, real or supposed, with his own happiness,) afford security for permanence and accuracy of recollection.

The state of the witness’s mind at the time is another circumstance by which the strength of the impression made by the transaction at the time, and thence the strength and accuracy of his recollection of it, cannot but be in a very considerable degree influenced. If, by business of a more interesting nature to himself, his attention be pointed another way,—especially if, by the urgency of it in point of time, his mind have been put into a hurry,—the impression made by the transaction in question may be slight, indistinct, and fleeting, and his recollection of it proportionably uncertain and confined; although, in other circumstances, the impression made by a transaction of that same nature might have been sufficiently strong, distinct, and permanent.

A still better, and in every case without exception a more trustworthy, lot of evidence, than can be constituted by judicial testimony alone (how well soever the examination be conducted,) is that which consists of the judicial testimony of the same person, with an article of casually written evidence of his inditing (a letter or memorandum of his penning) at the time (or, if after, the sooner after it the better) for his assistance; the script being at the same time produced, or, at the demand of either party, ready to be produced. Against incompleteness on either side, there is the security afforded by examination and cross-examination against mendacity and bias on one side, there is the security afforded by cross-examination; against simple incorrectness on either side, there is the security afforded by the fortunate script, the fortunate letter or memorandum, the article of casually written evidence.

This composite sort of evidence, when the written element happens to present itself, may be regarded as a sort of super-ordinary lot of evidence, still better than that which in general passes under the denomination of the best. But, eligible as it is when it is to be had, it would evidently be a vain arrangement to exact it in all cases, or even to place it upon the footing of regular and ordinary evidence; since the existence of it is merely fortuitous, depending altogether upon the free pleasure and accidental disposition, as well as literary endowments, of the witness. If it could be required by law, it would come under the notion of preappointed evidence.*

CHAPTER VIII.: OF SUPPOSED WRITTEN EVIDENCE, TRANSMITTED THROUGH WRITTEN; OR TRANSCRIPTITIOUS EVIDENCE.

§ 1.: A transcript, what—Modes of transcription.

On the occasion of this, as of other modifications of transmitted evidence, the main objects of inquiry are still two:—1. What shall be received? and, 2. Whatever comes to be received, by what consideration shall the estimate formed of it, in respect of comparative trustworthiness, be directed?

But, previously to our entrance into this inquiry, the bounds of the object must be previously fixed, and its several modifications distinguished.

By a transcript, taken in its largest sense, may be understood any discourse which, being expressed by permanent signs or characters, is proposed as capable of producing, in the way of evidence, the same effect as another discourse, which, being also expressed by permanent signs, is with reference to it termed the original.

Under this most general description are comprehended three modifications:—

1. A transcript which is such in tenor: a copy taken verbatim et literatim.

2. A transcript in purport only, without being such in tenor. Couched in a set of words more or less different, it contains what is looked upon as conveying precisely the same sense. To this head belong translations made into other languages.

3. A transcript in effect only. Not professing to contain so much as the purport of the original, at any rate not the whole of the purport, it professes to contain that which, with reference to the purpose in question, is sufficient for the purpose. To this head belong extracts and abridgments.

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A transcript in tenor is a transcript both in purport and effect: a transcript in purport is also a transcript in effect.

A transcript in tenor is that modification which seems the most apt to be presented by the word; but the others have little less claim to consideration, and they also may be naturally expected to be considered under this head. Let this be examined in the first place. Whatever is said in relation to this principal and most proper modification, will serve as a model and standard of reference for whatever there may be occasion to say of the two others.

For making transcripts (understand transcripts in tenor,) the word transcript being taken in the most extensive sense, there are divers modes, performed by so many correspondent operations. Not being altogether upon a par in respect of probability of correctness, they require on that account to be distinguished:—

1. One is, writing, in the more common and confined sense of the word: writing with pen and ink. This is the most in use, except in the case where transcripts of the same original are required in large numbers, as in the case of.

2. Printing: including the old-established mode by moveable types, and the mode of modern invention in solid masses, called stereotypage.

3. Engraving, in the case where the characters are to be taken off in the way of impression: as in the ordinary case of engraving on copper, pewter, wood, glass, &c.

4. Sculpture: in the case where no impressions are meant to taken off.

5. Painting in various ways: which is but an elaborate mode of writing, comparatively of little use.*

In the case of the recently invented mode of writing with two or more pens at once, the distinction between original and transcript has, it is evident, no place: except in so far as, by an independent act of authentication, one or more of such draughts or copies should come thus to be distinguished from the rest.

So in the case of the anteriorly invented mode of taking off impressions from writing.

As between one mode of transcription and another, the probability of correctness, fraud apart, will depend on the following circumstances:—

1. The number of persons employed in the making and verification of the transcript.

2. The degree of attention requisite, and naturally to be expected, on the part of each.

3. The degree of publicity with which errors in general will, in the instance of each, be likely to be known and noticed.

On all these accounts taken together, printing seems to present a superior chance for correctness, in comparison with writing.†

As, by writing, a transcript may, for practical purposes, be, by means of due examination and verification, put upon a level with the original; so may printing, and with still greater facility and certainty.

In the case of laws, and all other documents of a public nature that are consigned to print, the printed copies ought to be placed, by appointment of law, upon the same level as the original.

Reason: In the case of laws, the printed copy is the only standard to which access is rendered possible to the people, who, at their peril, are bound to pay obedience to them.

In whatsoever cases forgery in the way of writing is made punishable, forgery in the way of printing, for the same purpose, ought to be made punishable in the same manner.

Examples:—

1. Forgery of laws; whether in the way of fabrication or falsification.

2. Forgery of a deed of administration; such as proclamations, nominations to offices, orders issued to public functionaries.

3. Forgery of articles of intelligence, or Edition: current; Page: [141] advertisements, in a newspaper published under the direct orders of government.

4. Forgery of articles of intelligence, or advertisements, in any private newspaper; the appearance of the paper current under that title being counterfeited by a person other than the accustomed publisher.

Reason: In the case of fraud, if any one of the possible modes of transcription were left unincluded in the penal consequences, fraud in that shape would be without a check; and being, as often as it succeeds, alike mischievous, in whatever shape, there is no reason why it should be exempted in one shape, more than in another.

In regard to a transcript professing to be such in tenor, a distinction must be taken between a transcript verified, and a transcript unverified, or (which comes to the same thing) not known to have been verified.

By a transcript verified in tenor, I understand a transcript, the conformity of which (i. e. of the tenor of it) to the tenor of the original, has been sufficiently established for every judicial purpose; at least for the judicial purpose to which, on the occasion in question, it is proposed to be applied.

Verification is to a transcript what authentication is to an original. By what means this effect may most advantageously be produced, is a topic of consideration that may be posted off to a separate head, with as much advantage, and with as little inconvenience, in this case as in that other, and for the same reason.*

Supposing the transcript verified—verified according to the import of the term as just fixed,—it thereby becomes dismissed in effect from the present subject. It is alter et idem, a perfect equivalent for the original; it can no longer be considered with propriety—with consistency at least, in the light of makeshift evidence.

What follows is, therefore, to be confined in its application to the case of a transcript not verified: either not known to have been verified by any means, or at least not known to have been verified by sufficient means.

Applied to transcriptural evidence, the description of the characteristic fraud—the fraud liable to be practised without detection, if the transmitted evidence were to be received on the same footing as the original—is as follows. A man falsifies a real original, or fabricates a spurious one, to the end that, a transcript (here understand in tenor) being made of it, the effect of a forged script may be produced; at the same time that, the falsified or spurious original being destroyed, and thence no longer producible, the fraud may by that means pass undetected.

In the case of the characteristic fraud, as above described, the falsity, so far as the written evidence is concerned, is confined to the extrajudicial part of the evidence. The object is distorted, or a fallacious object is fabricated, or the true one falsified; but the medium (for anything that appears) is correct and pure.

Here, however, as elsewhere, though complicity on the part of the writer of the transcript (privity, which is as much as to say complicity) is not of the essence of the fraud, neither is it excluded by it. The fraud may have been committed, and, having been committed, may ultimately, or for the time, have succeeded, whether the vice of the original was or was not known to the maker of the transcript, at the time of his making it.

Setting aside the characteristic fraud,—in the case of this, as of other transmitted evidence, for one source of true information, there are two sources of untrustworthiness and deception: 1. If there be an original from whence the transcript was made, that original may have been spurious, fraudulently altered, or simply incorrect; 2. The pretended transcript may have had no original, or, being taken from an original, may by fraud or by accident be incorrect.

To be spurious or incorrect, whether from mendacious design or from accident, is what may have happened (it may be said) to any single script, considered in the character of an original, or pretended original; and on that account, these causes of untrustworthiness ought not to be set down to the account of the supposed transcript as such. True: but in the case of a script purporting to be an original, and chargeable either with spuriousness or incorrectness, it may happen to it to wear upon the face of it marks of the spuriousness, or marks of the incorrectness, such as upon the face of a transcript would not be equally open to observation.

Moreover,—in the case where the script, to present the appearance of an original, would require to present the appearance of being authenticated (for example, by the person or persons whose discourse it purports to be, with or without the signature of any other person or persons in the character of attesting witnesses,)—if the supposed transcript were, without having been verified, to be received on the same footing as an original,—a person intending fraud would find a much better chance of success and safety in the making of a pretended transcript of the tenor in question, than in the fabrication of a spurious original, or the fraudulent alteration of a really existing one, since the means of Edition: current; Page: [142] detection capable of being afforded by the spurious signatures in the one case, and the obliterations, additions, or substitutions, in the other, would all be avoided by the expedient of the pretended transcript.

So far as simple incorrectness, the result of accident, clear of design and mendacity, is concerned, this species of transmitted evidence, supposed written through written, will appear much superior in trustworthiness to hearsay evidence; and that whether the supposed script which is the supposed source of the evidence, or the indubitably existing script constituting the medium through which the other is supposed to be conveyed, be considered.

1. As to the supposed original (whether really existing or not,) it may either be of the nature of preappointed evidence, or of the nature of casually written evidence. If it be of the nature of preappointed evidence, the trustworthiness of the discourse contained in it, is, by the supposition, placed, in one way or other, upon a superior footing. The lowest footing on which it can stand, is that of casually written evidence: and this (as hath already been seen) presents, in the nature of it, a security against incorrectness, superior to that which naturrally belongs to oral discourse. Writing, in the very nature of the operation, requires a degree of attention and recollection more than is required in speaking.

2. On the part of that one of the two persons concerned, whose writing constitutes the medium through which the supposed tenor of the original is transmitted,—the superiority of this modification of transmitted evidence, as well over supposed oral through oral, as supposed written through oral, is easily discernible.

1. In the case of supposed oral through oral,—the judicially reporting witness, at the time when the supposed extrajudicial statement presented itself to his ear, caught it as he could—caught it as it flew. He may have misconceived it from the first—he may have forgotten it in any part, or misrecollected it afterwards. The writer of the transcript has the original all along before him, and commits not to writing so much as a word till he is satisfied that his conception of it is just: and no sooner is a word thus fixed, than the preservation of it is placed on a ground much stronger than any that could be given to it by the firmest memory.

2. In the case of supposed written through oral,—the judicially reporting witness may or may not have had his own time for the forming of his conceptions in relation to the contents of the script. But, let the time actually taken by him have been ever so sufficient,—whether with any, and what, degree of correctness those conceptions have at the time of his deposition been preserved, depends altogether upon the power, the relative power, of his memory.

Supposing fraud entirely out of the question,—in a practical view, the trustworthiness of a transcript will be but little inferior to an original. There are two cases in which an error is of no practical importance: 1. When the words it falls upon are of no practical importance: 2. When, though the importance of the words it falls upon be ever so considerable, the correction requisite for it is sufficiently indicated by the context.

The oftener a series of words comes to be repeated, the less probable it is that an unintentional error in respect to any given words should be repeated in each instance: and if there be but a single instance in which it fails of being repeated, the true reading remaining in that instance will commonly serve for the correction of the false readings in all the others. This, of course, will hold equally good, whether in the original script the repetitions were, or were not, necessary to the purpose. Hence an advantage resulting from repetitions that otherwise would be useless: an advantage, though such a one as shrinks to nothing when compared with the disadvantages.

The more rare it is for a mere unintentional error of the transcriber to be productive of an incurable error in the sense, the stronger the indication given of fraud, where the error is material, and material in such a way as to be subservient to any assignable sinister purpose.

On the part of the transcriber, the faculty of conception being so amply assisted, and the use of the faculty of remembrance superseded,—whatever danger of incorrectness from this source remains open, depends upon the accidental deficiency of the faculty of attention. From the consideration that this is the faculty most exposed to fail, some light may be thrown on the question, which of the three shapes, omission, substitution, addition (in case of honest incorrectness,) the inaccuracy seems most likely to take.

1. Omission presents itself as being the most natural. On the part of any given word in the original, a momentary failure of attention to that word may have a correspondent omission for the result: and in this case (if a failure of the conception be altogether out of the question,) a larger portion of a line may with almost equal probability—an entire line with still greater probability, be the result.

2. Substitution of one word for another (in general by means of the substitution of this or that particular letter for another,) seems nearly, if not altogether, as probable as simple omission. What renders it the more probable is, that this species of inaccuracy is Edition: current; Page: [143] more apt than the preceding to originate in misconception. It may be referable in a greater or less degree to misconception, if, the transcriber being a man sufficiently acquainted with the subject to form a judgment, the transcript, deviating in this way from the original, presents, notwithstanding, an intelligible sense. If the sentence altogether presents either no sense at all, or none but what is plainly absurd and irrational, the transcriber not being altogether disqualified from judging, it is to a failure of attention, and that alone, that the inaccuracy seems referable.

3. Addition of a word—insertion of a word to which no correspondent word exists in the original—is a mode of inaccuracy not altogether without example, but much less frequently exemplified than either of the two others. Judgment, attention, applied to the subject, applied to the original script, cannot be the cause of an inacuracy of this nature: the cause of it, when it does take place, must be sought for in the imagination: it must be considered as a product of the imagination, a production which finds its way into the transcript for want of that attentive comparison with the original, which, by showing the original to have no such part in it, would be sufficient to prevent it from being admitted into the transcript.

The use and object of the above distinctions, in so far as they may be found just, is to give facility to the detection of fraud—to serve for the distinguishing of a case of fraud from a case of honest incorrectness. If, in general, insertion be in any degree less apt to originate in accident than either omission or substitution,—then—if in any individual instance insertion should happen to have been discovered,—in that instance, should any marks of design (which here is as much as to say of fraud) be discovered, this particularly may perhaps be added to that side of the account.

§ 3.: In what cases, and on what conditions, shall a transcript be received in evidence?*

A script being tendered in evidence in the character of a transcript from another, that other spoken of in the character of an original,—shall it, or shall it not, be received?

For the purpose of an answer to this question, seven cases must in the first place be distinguished:—

I. The alleged original is in existence, producible or consultable, and known to be so.

II. The alleged original is in a state of expatriation.

III. The alleged original is in a state of exprovinciation.

IV. The alleged original is known to have existed; but is known to be no longer in existence.

V. The alleged original is known to have existed; but whether it be still in existence or not, is uncertain.

VI. It is not known whether the alleged transcript be a transcript or not, i. e. whether there ever existed a script, from which, in the character of a transcript, its existence was derived.

VII. The alleged original is known to be in existence, but in the power of the adverse party.

To meet these possible modifications in the relative situation of the lot of evidence, there are three modifications of which the conduct of the judge in relation to it is susceptible.

1. It may be received absolutely and unconditionally.

2. It may be rejected absolutely and unconditionally.

3. It may be received conditionally, or according to circumstances: say received sub modo.

This last course will, upon the whole, he found, in most cases, the most advantageous one.

Case I. The original known to be producible or consultable.

Rule 1. Where the original is, at the time, producible or accessible, no transcript or alleged transcript ought to be received without some special reason.

Reason: Because, in point of trustworthiness, and with a view to the danger of misdecision, no transcript can ever be, strictly speaking, exactly upon a par with the original. If, then, the original be produced at the same time, the transcript (except in the cases immediately following) is superfluous, and the Edition: current; Page: [144] vexation and expense incident to the production of it, uncompensated: if the original be not produced, the transcript may be deceptitious.

Rule 2. Where, on the occasion in question, the original cannot, without a considerable degree of difficulty, be referred to and perused,—in such case, a transcript in tenor, purport, or effect, as the case may be, may be exhibited in addition to the original, and at the same time.—Examples:

1. The original, in respect of obsoleteness of language, or handwriting, or both, difficult to be conceived or perused, and read with fluency.

2. The original conceived in a language (dead or living) other than the current language: (in this case, the transcript will be a transcript not in tenor, but in purport or effect.)

3. Where not the whole of the original, but a particular part or parts only, are applicable to the purpose in question, in the character of evidence: especially if the relevant portions be more or less scattered, and distant from each other. In this case, the transcript is of the nature of an extract or abridgment: a transcript neither in tenor, nor (throughout at least) in purport, but only in effect.

Rule 3. So, where, on the hearing of the cause, for the convenience of consultation, a number of copies are wanted at the same time.

Rule 4. For special preponderant reason, a transcript may, in every instance, under appropriate conditions, be received instead of the original.

Rule 5. Such reason will, in every instance, be reducible to some one or more of the modifications of collateral judicial inconvenience (viz. delay, vexation, or expense,) considered as resulting from the production or consultation of the original, over and above what would result from the production or consultation of the supposed transcript.

Rule 6. Of the cases in which it may happen that the production of the original in the first instance shall be productive of preponperant inconvenience in the shape of delay, vexation, and expense, the following may be examples:—

1. Where, at the time in question, it happens to be lodged in a place out of the dominions of the state.

2. Or in a place within some province beyond sea, or other widely distant province—(viz. with reference to the seat of the tribunal to which the evidence is to be presented.)

3. Where the original script in question forms part of a volume, which cannot conveniently be removed from the repository in which it is kept, by reason that other parts of its contents are requisite to be kept in that same place for other purposes.

Rule 7. When (for the avoidance of delay, vexation, or expense) a transcript is received in the place of the original, its faithfulness ought to have been previously established in the most trustworthy manner; or—if (for the avoidance of delay, vexation, and expense) not in the manner the most trustworthy of all—in the manner the next most trustworthy that shall be compatible with the avoidance of a preponderant degree of such collateral inconvenience.

Rule 8. With reference to the adverse party—the party against whom the lot of evidence is produced,—its fidelity will have been established in the most satisfactory manner, when such adverse party, by himself or his more competent agents, having (upon sufficient opportunity of access) compared the transcript with the original, finds the transcript equivalent in every respect to the original, in point of effect.

Rule 9. But no script ought ever to be received (except as by the next rule) in the character of a transcript, in lieu of the original (as above,) from the hands of any suitor, without a declaration upon oath, on the part of him or his law-agent, declaring the fact of his having examined it by the original, and of the persuasion he entertains of its fidelity.

Rule 10. If the transcript—having been examined by the original, and appearing upon the face of it so to have been, by some appropriate official person,—has thereupon been certified to be correct,—the party so tendering it in evidence is not bound so to re-examine it: but neither in this case should the declaration of his own persuasion respecting the fidelity of it be omitted; although such persuasion have no other ground than the general consideration of the security afforded by this species of preappointed evidence.

Reason 1. A possible case is, fraud on the part of the official examiner, by collusion with the party tendering the evidence.

2. Error on the part of the official examiner, viz. to the advantage of the party, and discovered by him by accident.

Case II. The original known to be in a state of expatriation.

This case is, upon the very face of it, a modification of the first case: but, presenting a demand for an appropriate set of arrangements, it requires to be arranged under a separate head.

In the case of transcriptural evidence, expatriation of the script is analogous to expatriation of the person in the case of casually written and hearsay evidence. The arrangements demanded—though, by reason of the different nature of the subject-matter, they will not in terminis coincide with the arrangements suitable to those two preceding cases—will, under the guidance of analogy, be naturally indicated by them.

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Rule. Where, in regard to a script proffered in the character of a transcript, it is ascertained or believed that the original is in a state of expatriation,—let the following arrangements await the option of the judge:—

1. To cause the transcript to be sent abroad (viz. to the place where the original is kept,) for examination, and attestation of verity.

2. To cause a fresh transcript from the original, duly verified, to be imported and produced.

3. To cause the original itself to be imported and produced, if practicable, and without preponderant inconvenience.

Any one of these arrangements to be taken, or none, according to the importance of the cause, the importance of the article of evidence in question in relation to the cause, the degree of persuasion respecting the faithfulness or unfaithfulness of the transcript, and the comparative degrees of inconvenience, in the shape of delay, vexation, and expense, attached to the three respective courses.

A time to be declared, subject to abbreviation or enlargement for sufficient cause, at the expiration of which, if the intended operation chosen (as above) be not performed, it shall be regarded as impracticable.

The provisional decision to be in favour either of the party proffering the evidence, or of the adverse party: and in either case, with or without security taken for eventual reinstatement.

Observations. Unless the non-existence of the alleged original, or the unfaithfulness of the transcript in all material points, he believed—even although there should be no other direct evidence of the existence of the original than the judicial testimony of the party, nor of its faithfulness, than his declared belief,—the judge will scarcely refuse to pronounce the provisional decision in favour of the faithfulness of the transcript, taking security for reinstatement in case the result of the reference so made to the original should prove unfavourable. For the reasons why, see the examination of Case VI. further on.

Case III. The original known to be in a state of exprovinciation.

This case is, also, upon the face of it, a modification of Case I.: a modification closely analogous to the last preceding case, the case of expatriation. The arrangements requisite to be taken will, in their general description, coincide with those already brought to view in that last-mentioned case; but, in detail, the description of them will obviously require to be, in various particulars, different. In the case of expatriation, everything that can be done is more or less dependent upon the facilities given or withholden by the government in the foreign state: in the case of exprovinciation, it depends upon the arrangements taken in that behalf by the government in the state in question—in the same state.

Rule. Where, in regard to a script proffered in the character of a transcript, it is ascertained or believed that the original is in a state of exprovinciation,—let the same arrangements as in the case of expatriation await the option of the judge; subject to such arrangements, if any, as may have been taken in this behalf by the legislator, the common sovereign of both provinces.

Observations. As far as local distance is concerned, the quantum of delay, vexation, and expense, attendant upon that circumstance, may be as great in the case of exprovinciation as in that of expatriation;—the only uniform difference between the two cases consists in this, viz. that, in the case of exprovinciation, access to the original, or the production of it, will be at the command of the government of the country in which the transcript is thus proffered; in the case of expatriation, not.

Case IV. The original known to have existed, but to be no longer in existence.

Rule. Where, in regard to a script produced in the character of a transcript, it is known that an original script from whence it was transcribed was once in existence, but that it is no longer in existence; let the transcript be received in place of the original, subject to whatever considerations may be alleged in diminution of its trustworthiness.

Reason. Neither fraud, nor material incorrectness, are to be presumed: both cases are, in comparison, extremely rare. In this case, forgery in the way of fabrication is by the supposition out of the question. An original to the transcript there really was: the only question is, whether the representation given of it by the transcript be substantially a faithful one. If for every thousand transcripts there have been one unfaithful one, and no more; on this supposition, the probability of misdecision, even supposing the unfaithful transcript to obtain credence, is but as a thousand to one; whereas, on the other hand, if the transcript be necessary to warrant the decision prayed for on the side of him by whom it is proffered, and being so, is rejected, misdecision, in case of rejection, is a certain consequence.

Or say thus: If, in every ten transcripts of each of which the original has ceased to be in existence, whereupon the transcript has been proffered in evidence in its stead, there has been one unfaithful and no more; then, in case of admission, the probability of misdecision is, at the utmost, but as one to ten; whereas, in case of rejection, it is certain.

Previously to the deperition of the original, no fraud in any shape can have existed, unless at the time of the fraud the deperition Edition: current; Page: [146] had been foreseen; which it could hardly have been, unless an intention of procuring such deperition had formed a part of the fraudulent contrivance: no fraud in any shape, either by, or by the help of, purposed infidelity on the part of the transcriber; or by the like on the part of an examiner; or by forgery in the way of falsification, committed by another person at a time posterior to the examination: always understood and supposed that, according to the known dispositions of the law, so long as the original is in being, the transcript cannot be received on any terms; or not but upon the terms of being confronted with the original, in case of dispute.

No sooner, however, is the deperition known, than the check which the existence of the original opposed to forgery in the way of falsification is at an end. The transcript becomes, in that event, at that period, exposed to falsification; to wit, as much as an original would have been, but no more: the transcript, as such, is not on this score less trustworthy than an original would have been in its place.

Here, if the author of the falsification was the party by whom the transcript is proffered in evidence, the most natural case is, that, for the purpose of giving room for the falsification, it was by him, or by his means, that the deperition of the original was procured: but another possible case is, that the deperition took place without his participation; for example, by accidental fire, or in some other way by mere accident; and, the opening to fraud being thus made, then it was that it occurred to him to take advantage of it.

If it be clear that, from the time of the deperition of the original down to the time of the production of the transcript, the transcript has never been either in his custody, or, to any such purpose, in his power,—all suspicion of fraud on his part of course falls to the ground.

As to mere accident: in one point of view it should afford no reason at all for the rejection of a proffered transcript in this case. For (design being by the supposition out of the question) an incorrectness, even supposing it material, is not more likely to operate to the prejudice of one party than of another: the chances of advantage and disadvantage being, therefore, equal, and that with reference to each party, their situations are respectively the same as if there were no chance either of advantage or disadvantage on either side.

But this circumstance is not altogether destructive of all probability of misdecision from this source. Whether the incorrectness be taken advantage of or no, will depend upon that one of the parties in whose custody or power the transcript is: if the error be to his disadvantage, and he aware of it, he will either not produce the transcript at all, or not without pointing out the error, and claiming the benefit of its being corrected; if it be to his advantage, and his disposition be to such a degree dishonest, he will in that case take advantage of the error, although he had no part in the production of it.

If, from the above considerations, the cases on which the investigation turns seem far-fetched and improbable,—the more far-fetched and improbable the cases appear on which the investigation turns, the clearer will be the impropriety of any rule, which, in the case supposed, should pronounce the exclusion of transcriptural evidence.

Case V. The alleged original known to have existed; but whether it be still in existence or no, is uncertain.

Rule. When, in regard to a script produced in the character of a transcript, it is known that an original script from whence it was transcribed was once in existence, but whether it be still in existence is uncertain,—let the transcript be received in evidence: but, in the framing of the decision grounded on the evidence, for the avoidance of irreparable injustice, let the same arrangements await the option of the judge, as in the case where (as above) the original is known to be in a state of expatriation.

Case VI. A script purporting upon the face of it to be a transcript, is proffered as such, but the existence of the supposed original has not been ascertained.

Rule. It may sometimes happen that a script, purporting or appearing upon the face of it to be a transcript taken from some original of the same tenor, purport, or effect, shall be proffered in evidence to serve in place of the supposed original; at the same time that no other direct evidence of the existence of such original is producible. In such case, let such supposed transcript be received in evidence for what it appears to be worth; subject always to the double uncertainty whether any such original as it purports to have been transcribed from, ever existed; and whether, supposing such original to have existed, the supposed transcript in question be a sufficiently faithful transcript of it.

In some modifications of this case, the persuasive force of an article of evidence of this description may be of itself very slight and inconsiderable. At the worst, however, it will operate as a lot of circumstantial evidence, evidentiary of the existence of a correspondent original; and it is of the nature of circumstantial evidence to be susceptible of any degree of persuasive force: and, as circumstantial evidence, be it in what shape it may, cannot be too slight to be received, in company with other evidence, so neither can it in this.

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If the supposed original be an article of casually-written evidence, it may be extremely difficult to determine whether the script in question be a transcript of an original of the same tenor or effect, or whether it may not itself be an original, not having been transcribed from any other. (See below, § 5.)

In the case where the supposed original (supposing it to exist) must have been an article of preappointed evidence, it will in general be sufficiently apparent that the script in question—the alleged transcript, if it had not an original, could not itself be an original. Why? Because the original, being by the supposition an article of preappointed evidence, (for example, an instrument of agreement or conveyance,) will have been furnished with some intrinsic marks of authentication, prescribed or customary, such as could not, without forgery, be given to a transcript.

In this case, another doubt may also arise concerning the alleged transcript,—viz. whether it be a transcript from an original actually authenticated, or only a preparatory sketch or draught of an instrument to the same effect, not at that time authenticated. In the former case, a correspondent original must, by the supposition, have existed: in the other case, though intended, it may never have existed. In the former case, it is of the nature of that species of circumstantial evidence, distinguished on a former occasion by the name of posteriora priorum evidence; on the other, of the opposite nature, priora posteriorum evidence.

If, upon the face of an original of the nature in question, a certain formulary of attestation (whether by positive appointment of law, or by custom) be generally to be found,—the difference between a transcript and a preparatory draught will, in general, not be difficult to decide: if it be a transcript, the formulary of attestation will hardly have been omitted in it; if it be but a preparatory draught, no such formulary can make part of it.

The most suspicious modification of this case is where a party proffers in evidence a script, which, according to his account of it, is a transcript, in tenor, purport, or effect, made from an original instrument, of the nature of preappointed evidence (contractual, for instance, or say an agreement or conveyance;) which instrument, he says, was once in his possession (or in the possession of some person to whose interest he succeeds in quality of representative—suppose his ancestor or testator,) but is now, to use the common expression, lost: i. e. not that he knows of its having perished, or has any particular reason for supposing it to have perished; but that, after every search he can make, he has not been able to find it, nor can think of any place, as yet unsearched or uninquired at, at which he sees any probability of its being found.

This sort of case lies obviously open to the characteristic fraud. It may be, that no such original instrument was ever in existence; and that the party, not choosing to run the hazard of forging, in the way of fabrication, any pretended original to the same effect, makes and produces this pretended transcript, regarding the fraud in this shape as being more promising in point of success, or less exposed to danger.

What, on the other hand, may also be, is, that a genuine original to that same effect was once, and perhaps still continues to be, in existence, but, by the operation of some cause altogether out of the reach of his knowledge or conjecture, either was destroyed, or was concealed or removed out of his knowledge. But, as neither judicial mendacity, nor fraud in any other shape, ought to be presumed—i. e. regarded as certain, without special inquiry and consideration into the idiosyncrasy of the case,—the state of things in question, though a ground of suspicion, forms no sufficient ground for the absolute rejection of the evidence.

This, in the most suspicious form that it can assume, is but a modification of self-serving evidence; of which, even in its most questionable and least trustworthy shape, it has already been in some degree, and will hereafter* be more fully, shown, that it ought not in any case to be absolutely excluded; much less where, as here supposed, the party is subjectable to vivâ voce cross-examination upon oath.

By whose hand was the alleged transcript made? By that of the party by whom, in the character of a transcript, it is proffered in evidence? It is in this case so obviously exposed to suspicion, that it seems little in danger of being accepted for more than it is worth. Is it in the handwriting of another person? Then there must have been some other person concerned in the business, and (if not imposed upon) privy to the fraud. If, in respect of punishment, a fraud of this kind is placed (as it ought to be) upon a level with ordinary forgery,—in such case, the danger incurred by the admission of this transcriptural kind of evidence differs but inconsiderably from the danger inseparably attached to the admission of preappointed but unregistered contractual evidence in general; since all such evidence, being unregistered, is liable to be forged.

If the party disguises his hand, to make it look like that of another person, a question that cannot fail to be put to him is, who the writer is. In this case, whether he names a particular individual, or declares that he Edition: current; Page: [148] knows not who it is, here at any rate is a case of judicial mendacity, superadded to a fraud which ought likewise to be considered as a modification of forgery. If the person named by him be a living individual, then the individual is living to contradict him: if an individual now dead, there will be other writings, the genuine writings of that same individual, to confront with this forged and spurious script: if it be an individual of whose hand no specimens are to be found, then comes the species of counter-evidence constituted by the improbability of the alleged fact, viz. that, of a hand expert in writing, this, and no one other production, should be to be found.

Supposing the instrument genuine, it will seldom happen that no circumstantial evidence, evidentiary of the occasion of executing it, and the probability of its having been executed, should be to be found. In proportion as the existence of this sort of confirmative circumstantial evidence appears probable, the unforthcomingness of it will constitute an objection to the trustworthiness of the supposed transcript; and an objection too obvious to be in danger of being overlooked.

By all these considerations, not only the danger of deception in case of fraud, but the probability of an attempt at deception by fraud, will surely appear to be reduced very considerably below—I will not say certainty—but below an even chance. To facilitate conception,—out of a hundred cases in which evidence of this sort is proffered, in ten, and no more than ten, it is accompanied with fraud, and in one out of these ten the fraud succeeds. Thus stands the matter, on the supposition of the admission of the evidence. In ninety cases out of every hundred, right decision—justice, is the consequence; in one only, misdecision—injustice. Next, suppose a peremptory exclusion put upon this species of evidence. Here the proportions are reversed: in one instance, misdecision—injustice, is prevented; in ninety instances, right decision is prevented, injustice is produced.

If the above ratios appear too great, take lesser ones: but they will hardly be taken, by anybody, so small, but that, in his view of the matter, the probability will be still on the same side—the practical result will be still the same.

Case VII. The original in the power of the adverse party.

Observations. In this case, so long as the party in whose hands the original is, does not produce it, the existence of the alleged transcript being notified to him, the fidelity of the transcript is thereby proved, as against such detainer, by a most satisfactory species of evidence—the virtual admission of the party interested in the proof of unfaithfulness on the part of the transcript, if in truth it were chargeable with any such defect.

That a script, or anything else, should have been in the power of the party in question, or any other individual, is one of those events against the happening of which, be they ever so undesirable, no industry on the part of the law can afford security. But that a script, or anything else, the forthcomingness of which is requisite for the purposes of justice, should continue unforthcoming notwithstanding, and at the same time continue in existence, is a state of things which cannot have place from any other cause than an inexcusable imperfection—a voluntary imbecility, in the system of procedure. Supposing it (for argument’s sake) put out of doubt, that a man, having any such article in his custody or power, wilfully persists in the non-production of it,—no torture that he chose to submit to, rather than comply in this respect with the obligations of justice, could be too severe: at no price should it be permitted to a man to purchase the privilege of flying in the face of law, and committing a known injustice.*

A possible, and not very extraordinary case, is this: The original, having been in the hands of the adverse party, has passed out of his hands, and altogether out of his power, without any design of eluding the probative force of the transcript, and, in a word, without any default of his in any shape. In this case, he will naturally be able to show, if it has perished, that it has perished: if not, into what other hands it has passed. If, instead of this, he declares (being, of course, judicially examined) that he knows not what is become of the original,—in such case, although the declaration should be true, no injustice can reasonably be to be apprehended from considering the verity of the transcript, as between them two at least, as sufficiently established. If, after this declaration, he declares, moreover (under the same securities for veracity as are applied to the testimony of an ordinary witness,) that he does not believe the alleged transcript to be faithful, but to be unfaithful in such or such specified points,—here comes a contrariety of evidence, a difficulty under which the judge must form, on this as on other cases, the best judgment in his power.

In this case,—as between these two parties, the withholder of the original, and the holder of the transcript,—it manifestly makes no difference, whether the original be produced, that, by comparison with it, the transcript may be verified; or whether, on the non-production of the original, the verity of Edition: current; Page: [149] the transcript be declared to be sufficiently ascertained.

As between them two, yes: supposing the holder of the transcript satisfied of its verity—satisfied, consequently, that the original itself, if produced, would not be more favourable to his cause. As between them two, yes: but not as between other persons. If it were understood that, on the terms of establishing the verity of an alleged transcript, the possessor of the alleged original had it absolutely in his power to protect it from the scrutiny of the judge, and to make the alleged transcript good evidence against other persons, in the same or other suits,—the effect of forgery might thus be rendered attainable, without any of the risks. In pursuance of a preconcerted scheme of collusion, in an action brought on purpose, a pretended transcript of a deed of any description and to any value is proferred in evidence by the plaintiff; notice for the production of the original is given to the defendant; the defendant forbears to produce it; and thereupon the character of an original—an original confirmed by judicial inquiry, is given to the fraudulently pretended transcript.

§ 4.: Arrangements for securing the fidelity of transcripts.

Rule 1. Upon every transcript, made by a public scribe in the course of office, let a pledge of correctness be entered upon the face of it, as follows:—

1. The name of the transcriber, written by his own hand.

2. The designation of the actual time of taking the transcript; expressed by the day, month, and year.

3. The designation of the place at which the transcript was taken.

Rule 2. If, of the same transcript, one part be written by one hand, another by another, the designation should be repeated every time in thus changes hands; but, the name once given at length, the initials will afterwards be sufficient.

Rule 3. This obligation ought equally to be extended to professional scribes: for example, to notaries, conveyancers, attorneys, and their clerks.

Rule 4. Where, either at the time of making the transcript, or afterwards, it comes to be examined by any person other than the transcriber, the same pledge of correctness should be given by such examiner likewise.

Rule 5. And this whether, on the part of the transcriber, the transcript bears on the face of it any such pledge of correctness, or not.

Rule 6. Of every such official, as well as of every such professional transcript, as well the writer as the examiner should at all times be subject to judicial examination, touching the fidelity of the transcript, and the truth of their respective marks of verification, as above.

Rule 7. If, notwithstanding all such external evidence, the fidelity of the transcript be in dispute, and the original be still forthcoming,—the examination of the transcript by the original, as touching the points in dispute, may be made at any time, by or under the eyes of the judge.

Taken on the whole, the uses of these entries are not unobvious.

1. To afford a security against incorrectness through negligence. If error appears, it appears at the same time who the person is, to whom it is to be imputed.

2. To afford a security against fraud. If fraud have any share in the production of the error,—being the work of design, it cannot but be a material one, so as to operate to the prejudice of some right. But, the more material it is, the more strongly it points the eye of suspicion upon the person of the transcriber; and there he is, to answer for it. If the entry be not the writing of the person whose writing it purports to be, it is then a forgery: and, in this case, the punishment and peril of forgery attach upon the fraud.

3. A collateral and inferior use, in the case of the transcriber, is, to serve as an index and measure of his capacity and diligence, by showing the quantity of business dispatched by him in each given portion of time.

The use of the designation of the time, coupled with that of the place, is to throw difficulties in the way of forgery. The forgery will be detected, if it should appear that, on the day in question, there was no such person writing in that office, in that place. And, as to the clerk himself whose hand is thus forged, it will be easier to him to say with assurance that he wrote no such paper on this or that particular day, than that he never wrote any such paper in the whole course of his life. At the particular time in question, it may happen to him to recollect that his whole time was occupied about other business.

In the case of the examiner’s mark of attestation, an effectual indication of forgery will be afforded, should it ever appear that, before the time therein specified, the original had perished.

In the case of an official transcript, the designation of the place may, at first sight, appear superfluous. The situation of the official house is a matter of universal notoriety; and the official books and documents are kept at the official house. But,

1. In some cases, the office itself is ambulatory; as in the case of military offices, by sea and land.

2. The transcript may be of the nature of Edition: current; Page: [150] those which are destined to be sent out of the office; such as circular letters, and the like.

3. The document in question, though designed to be kept in the office, may, on some unforeseen occasion, be sent out of it, or, by accident, separated from it. The designation of the place will in this case serve for the replacement of it.

4. The designation of the person is scarcely complete without the designation of the place. Of the names called proper names, there are few but what are in fact common to many persons.

Of the above-proposed arrangements, the description is simple, the efficiency obvious, and the trouble not considerable. The application of them may at least be considered as forming the matter of a general rule. If, in this or that particular instance, the labour should appear to outweigh the utility,—in every such particular instance it will be easy to discard them by a special rule of exception adapted to the case.

In the case of an official transcript (as above,) a transcript having for its writer, or examiner, or both, a public functionary,—if the above arrangements for the security of individual responsibility be established, the security afforded (as above) by the relative date of the judicial deposition, will be the less material; inasmuch as the certificate or attestation of transcription or examination will never have been attached to the transcription, but under the persuasion of eventual liability to judicial scrutiny.

On that supposition, the case to which it applies with particular efficiency is that where the examiner has not been any such public functionary, but some unofficial individual—such, for instance, as a professional agent of this or that one of the parties in the cause; or, in case of an instrument of conveyance, or other contract, the man of law, or the clerk of the man of law (notary, attorney, or conveyancer,) by whom the original was drawn, or who, in the way of his professional functions, had had occasion to advert to the contents of the original for any other purpose.

With the help of this check, so strong is the collective body of security thus afforded, that the trustworthiness of an examiner of the least trustworthy description may be raised by it to a level superior in the eye of reason to a person of the most trustworthy description, to whom, for want of the requisite arrangements, the security for individual responsibility is found not to apply. For example, the testimony of the party by whom, and consequently in favour of whom, the supposed transcript is proffered in evidence, will, under these circumstances, present a better claim to credence than can be presented by any supposed official transcript;—nay, even by any transcript, of which, though it be known that it was made or examined in this or that particular office, and consequently by one or other of the clerks that at one time or other have been employed in that office, it is not known by what one in particular of those clerks it was written or examined.

§ 5.: How to distinguish between original and transcript.

In the case of preappointed evidence, all difficulty from this source is, or at least naturally will be, endeavoured to be provided against and prevented.

But, in the case of casually-written evidence, the case may remain exposed to every difficulty.

If it be a letter, that letter will naturally be signed by him whose discourse it is. But, among persons in habits of intimacy with each other, and perfectly acquainted with each other’s hands, the formality will often have been omitted.

But a script appears in form of a letter, and that letter signed by a name. To a person sufficiently acquainted with the handwriting, it may be proportionally clear that it is the handwriting of the individual whose name it bears: but, to the persons interested in the business, that person and his handwriting are (suppose) alike unknown. In that case, fraud of every kind apart, it cannot assuredly be known to a certainty whether the script be an original or a copy. All that can be said is, that its being an original is the more frequent, and thence in each individual case (setting aside idiosyncratic indications) the more natural and probable, result. For,

1. Considered in an aggregate point of view, the number of letters of which no transcripts are taken, exceeds (it may well be thought) in a prodigious degree the number of those of which transcripts are taken. But the strength of this consideration will depend upon a variety of circumstances:—1. Upon the importance of the subject of the letter; commercial, or non-commercial—relative to business purely private, or to business more or less public, &c.: 2. Upon the prevalence of the faculty and habit of taking copies of letters, in the country in question, at the time in question.

2. When a transcript of a letter is taken (fraud apart,) it is common and natural that upon the face of it it should be so intituled; or, at any rate, that in some way or other an indication should be given of its not being meant for anything more. On the other hand, this indication is a circumstance to which it may easily happen to be omitted. A letter lies before me: I take a copy of it (no matter for what purpose) for my own use: I know Edition: current; Page: [151] it to be but a copy: what need have I to give the information to myself?

Suppose other persons are meant to share with me in this use—all of whom are acquainted either with me or with the writer of the original, and with our respective hands. Even in this case, the indication will be apt to appear alike superfluous, and, as such, to be omitted.

3. If the original be no more than a memorandum, written by the writer for his own use, and not addressed to anybody, or meant to be sent to anybody;—in that case, if a transcript be taken of it by another person, it may be impossible for any third person (otherwise than by examination of one of the persons—the writer of the original, or the transcriber) to give so much as a guess which was the original, which the transcript. Either, presenting itself without the other, would of course be taken for an original: from the sight of the original alone, no person would be led to conclude that any transcript had been made of it; from the sight of the transcript alone, no person would be led to conclude that it was not an original, but a transcript. Such would generally be the case, supposing both of them equally free from alterations and slips of the pen. On the other hand, where alterations and blemishes are visible, from the nature of these blemishes some sort of indication or ground of conjecture respecting the script in question taken singly, as to the question whether it be an original or a copy, may every now and then be discoverable.

In an original, whatever alterations occur will naturally have arisen from a correspondent change in the thought and plan of the discourse. If one word be struck out, and another written over it, the word thus substituted will commonly have no resemblance in physical appearance to the word to which it is substituted: especially if, a clause composed of three or four words in connexion being struck through, another clause, embracing also a number of words, be put to serve instead of it.

In a transcript, where any such alterations are perceptible, if the error consisted in the omission of a word or series of words, the correction will consist in the insertion of such omitted word or words; which insertion, the error not having been discovered till the line is finished, will commonly be made in the way of interlineation. If the error consisted in the substitution of one word for another, the improper word will, in general, be a word more or less nearly similar in physical appearance to the proper one.

In short,—in an original, if any alterations are perceptible, they will be such as, being the result of a change of thought, will be indicative of such a change: in a transcript, if any alterations are perceptible, they will not be indicative of any change of thought.

On the occasion of these and all other such diagnostics, a caution as useful as any or all of them put together, is, not to place too implicit a confidence in them; and this for two reasons:—1. Because, even frand apart, their conclusiveness is susceptible of an infinity of gradations; 2. Because, if any one were understood to be conclusive, fraud would naturally bend its endeavours to take advantage of the rule.—Example: In the natural state of things, fraud apart, an original brouillon may swarm with substitutions and interlincations, to any degree of complication: a transcript will not naturally be infected in any considerable degree with any such blemishes. But, if this were to be understood in the character of a peremptory rule, to which the judge were obliged to conform—a man who, making a transcript, wished for any sinister purpose to make it pass for an original, would fill it with such blemishes on purpose.

Rule. Where, as between divers scripts emanating from the same original source, a doubt arises which is to be considered as the authentic draught; as, for instance, between two such scripts, whether the first be a rough sketch preparatory to the original, and the second the original, or the first an original, and the second a transcript (viz. either in tenor or in substance;)—let not the claim of any such script to be considered as the more authentic, be regarded as fixed by any general rule applicable to all sorts, or to any sorts, of scripts, except so far as, in the instance of this or that particular species of script, the distinction may have been fixed by an appropriate provision of statute law. But, in each instance, let all such of the contending scripts as can be produced, be produced accordingly; and, from a joint comparison of them all, let the true import of the discourse be collected.

Examples:—

1. Shop-books. Several shop-books kept by the same shopkeeper. In some, the order of the entries will have been purely chronological: in the waste-book and journal. In others, the primary principle of arrangement will be logical; the transactions being classed in groups, sometimes according to the persons, sometimes according to the things, to which they relate: the chronological principle of arrangement being secondary with relation to these logical ones.

In general, an entry belonging to that book in which the transaction is entered before it is entered in any other, will be more trustworthy than the correspondent entry in any other of the books: because the former one will be of the nature of an original, the others no more than transcripts, entered on so many different principles of arrangement. But it may happen that a mistake was made in the Edition: current; Page: [152] prior entry, and that it received correction in a posterior one.

2. Official books of any public office. The documents usually entered in the office being known,—the document, as made out in proper form, will naturally have been preceded in many instances by a short minute or memorandum, indicative of the species of the document which is to be made out, and serving for instruction to the clerk by whom it is to be made out.

3. The documents (if more than one) serving to exhibit a man’s last will:—viz. if no sufficient care has been taken by the legislator to stamp the character of anthenticity upon a document of a particular description, to the exclusion of all others that are liable to come into competition with it: or if a document, upon the face of it authentic, should come to be impugned on the ground of spuriousness, falsification, or unfairness in respect of the mode of bringing it into existence.

The inferiority of transmitted evidence, as compared with immediate evidence from the same source, is as manifest in the instance of this, as of any other, species of transmitted evidence. This species of evidence cannot therefore but be ranged under the head of makeshift evidence. At the same time, the cases are numerous, and the description of them extensive, in which the correspondent immediate evidence is not to be had, yet in which evidence from that source is so material, that, in a general view, the admissibility of it, even in the secondary and reported form, is altogether out of dispute.

Of the instructiveness and importance of real evidence, a general view has already been given under the head circumstantial evidence, of which it constitutes a species. On the present occasion, what remains to be brought to view is the specific description of the characteristic fraud, and the modifications which this species of transmitted evidence is susceptible of, according to the nature and trustworthiness of the medium through which it may happen to be transmitted to the conception of the judge.

The species of fraud to which this species of makeshift evidence stands exposed, may be thus described:—A person (suppose the defendant, or any other person on his behalf, in an expected criminal cause)—applying himself to the thing which, with relation to the principal fact in question, is already become, or which he proposes to convert into, a source of real evidence—either obliterates or alters the evidentiary appearances presented by it in the state in which he found it, or superinduces upon it fresh appearances of his own production, such as appear to him conducive to his purpose (viz. in the present case, that of exculpating him from the charge.)

This, it is evident, is neither more nor less than the sort of fraud which there has already been occasion to bring to view (to wit, in the Book on Circumstantial Evidence,) under the denomination of forgery of real evidence: alterative or fabricative, as the case may be.

One circumstance is remarkable, as being peculiar in relation to this modification of transmitted evidence. Exposed, as it has been seen to be, to a characteristic fraud, it is so no otherwise than as the corresponding immediate evidence is: the real evidence afforded by the same physical object,—issuing from the same source.

The cause of the difference is, that, in the case of the other modification of transmitted evidence, there are at least two persons concerned, or supposed to be concerned, in the character of witnesses or sources of evidence, two persons, the one of which (viz. the extrajudicial witness) may, under favour of his exemption from the sanction of an oath, and from cross-examination, put a deceit upon the other (viz. upon the intended judicial witness;) such a deceit, from which the judge, armed as he is with those instruments for the extraction of truth, is proportionably defended.

But, to the fraud liable to be practised upon, or in relation to, real evidence, the situation of one cause stands no less exposed than that of another—that of the judge, no less than that of any reporting percipient witness, on whose report, through choice or necessity, he rests his conception of the fact,—instead of the testimony of his own senses, with his own judgment for their assistance.

For this same reason, everything that relates to the examinability of the supposed extrajudicial witness has no place here. Here there is no extrajudicial witness in the case; in the room of the interrogable or uninterrogable person, we have the uninterrogable thing.

The personal evidence, by which the supposed real evidence in question is transmitted to the conception of the judge, may wear any of the forms which have already been brought to view:—1. Oral evidence, judicial testimony, delivered or extracted in the judicial, that is (by the supposition) the most trustworthy, mode; 2. Casually-written evidence; minutes taken, descriptive of the appearances exhibited by the thing—by the source of the real evidence; taken by a private individual, in the situation of an extrajudicial, and not an official, witness,—taken consequently at the time when the evidentiary appearances Edition: current; Page: [153] are freshest and most instructive, or at any late period (if any,) when, by the agency of time, they have been rendered less correctly instructive: taken, again, either at the very moment of inspection, or at any succeeding period, and at the end of any longer interval of time. 3. Written evidence taken by a preappointed, and, quoad hoc at least, an official, witness: not by the judge himself, but by some person of chosen trustworthiness, appointed for the purpose either by general and permanent designation of the law, or by special appointment from the judge. 4. Judicial testimony, delivered and extracted in the judicial mode, but grounded and supported by written minutes, containing the result of the inspection: the view itself taken, and the result committed to writing, at a period earlier than that at which the business could have been performed by a judicial presentation, or examination in the first instance.

Comparing with each other the two species of evidence, the original and reported (hearing in mind the several causes of inferiority observable in makeshift evidence, with relation to the correspondent species of regular evidence,) we shall find the difference much less in this, than in any other, instance.

1. The person by whom the reported real evidence is reported, may always be a preappointed witness—and that witness preappointed even by the judge. Here then vanishes all danger of fraud. Of all the several species of makeshift evidence, this is the only one which is not exposed to any variety of what we have called the characteristic fraud.

2. The person appointed thus to act in the character of reporting witness, may be, and naturally will be, a person possessed of that appropriate stock of information, which, with relation to the subject-matter of the deposition, will place him in the predicament of a scientific witness. The danger of deception on the part of the judge, without fraud on the part of the deposing witness—without any symptom of weakness in his rational faculties—without any other than such of which his intellectual faculties may be the seat,—is thus reduced to its minimum.

To the moral trustworthiness of official evidence (viz. of judicial, the most trustworthy species of official, evidence,) he may, and naturally will, add the intellectual trustworthiness of scientific evidence. If no appropriate modification of physical science be requisite, the person selected for this purpose will naturally be appointed by the judge; a person known to him through the medium of official relation and intercourse: in the opposite case, some person recommended by the general reputation of appropriate science.

It follows, then, that if, between the immediate and the thus reported real evidence, there be in any case any practically material difference in point of trustworthiness, it can only be in so far as there is something in the particular nature of the real evidence in question, that disqualifies it from being transmitted with accuracy through the medium of personal report: the perceptions which it affords to a percipient witness being such as cannot, without material alteration, be transmitted through the medium of language.

But, even in this case, the difference in point of trustworthiness will not be so great, as, upon the face of the above statement, it might at first sight appear to be. The judge—the official permanent judge—is not, upon the footing of this arrangement, so correctly and fully informed, as in the case where the information is presented to him in the shape of immediate real evidence. True: but (though he is not) his nominee, his deputy,—the person selected by him on the ground of his appropriate trustworthiness, as qualified, for the purpose in question, to officiate in his place,—receives and contemplates the information in its character of immediate real evidence. The decision of the case does not in effect lose the benefit of immediate real evidence: the result of the arrangement is no more than this, viz. that the decision in effect is transferred from the judge in ordinary, to another judge, who, though but an occasional one, may, on the particular occasion in question, for anything that appears, be regarded as equally fit and competent.

Upon this footing stands the disadvantage which reported real evidence lies under, when compared with immediate real evidence. Considered in another point of view, it may (at least in certain circumstances) appear possessed of an advantage. For the judicial trustworthiness of the official judge—for the probity, attention, and intelligence, brought into action by him on the occasion,—the public possesses in this case a sort of security, which it possesses not in the other. Suppose in the place of the judge an all-perfect human being, and at the same time, on the part of the proposed occasional judge-depute ad hoc, a character considerably inferior in these respects to his principal; the difference and the disadvantage on the side of the reported real evidence, in its comparison with the immediate, may be very considerable. On the other hand, suppose any considerable degree, though it be no more than the ordinary degree, of deficiency in point of trustworthiness on the part of the ordinary judge; or (what is at once an equally natural and less invidious supposition) suppose but, on the part of the public, a degree (though it be no more than the ordinary degree) of suspicion of a deficiency of trustworthiness in any of these points on the part of the judge; the advantage capable of being possessed by the information when in the shape of reported evidence, Edition: current; Page: [154] may be not inconsiderable. The judge (supposing him to repair to the spot alone) sees as much of the evidence as he pleases, and no more than he pleases: pays what attention to it he pleases, and no more than he pleases: contemplates it, if he pleases, on one side only, and with no other intention than that of discovering what pretences can be found, what excuses can be made to the public and his own conscience, for deducing from it inferences favourable to that side of the cause which his affections induce him to espouse. With these eyes it is that he views it: and it is after thus viewing it, in his character of a witness, that he reports it—to whom? To himself, in the character of a judge. It is the judge himself who is the witness; and that witness examined in secreto judicis, in the recesses of the judge’s own conscience: examined, and without cross-examination, by the judge.

Turn now to the opposite case, and see upon what footing stands the case of information from the same source, when reported to the judge through the medium of some other official (or at any rate a preappointed) witness. His report is delivered,—it may at least be, and therefore (at the instance of either party) ought to be, delivered,—upon the same footing, in every respect, as that of any ordinary witness—in public, and subject to cross-examination, with the several attendant securities. It is from this completely scrutinized evidence, delivered under the eye of the public, that the judge, himself speaking and acting under the eye of the public, draws his inferences.

In the one case, the judge decides upon data not before the public, and the public in consequence has no controul over him: in the other case, the judge decides, as in ordinary cases, from data which are as completely before the public as before himself.

With respect to the option, the question therefore seems to be brought to this point:—In the case where the information presents itself to the judge in the shape of immediate real evidence (the judge conveying himself to the spot for the purpose of contemplating it in that shape,) can he, or can he not, take the public, a sufficient portion of the public, with him? If he can, and does,—in such case the immediate evidence preserves its superiority over transmitted evidence: if he does not,—in that case, the transmitted evidence, instead of being inferior, is in fact, in a practical view, superior, to the immediate evidence; the transmitted evidence (though in itself it possesses the characteristic property of makeshift and irregular evidence) to the regular.*

CHAPTER X.: OF EVIDENCE TRANSMITTED THROUGH AN INDEFINITE NUMBER OF MEDIA.

We come now to the case where the information in question presents itself as if transmitted through media, simple or complex, as above described, and in each case with repetitions, in any number, of any one or more of the elements.

The modifications of which this case is susceptible, are evidently infinite. Happily, the conduct that seems proper to be observed in relation to them will be found capable of being determined by a few simple principles.

The first point to be ascertained under this head, is the influence exercised by the number of the media upon the probative force of the information thus conveyed.

For this purpose, instead of the word medium, there may on some occasions be a convenience in employing the word degree.

The mode in which this is to be done, is by reckoning, for every medium through which the evidence passes, a degree. Thus, hearsay evidence through one medium is of the first degree, through two media of the second degree, and so on.

1. In every succession from one medium Edition: current; Page: [155] to another, by which a supposed extrajudicial statement passes, in its way from the supposed percipient or other primary extrajudicial narrator, to the ear or eye of the judge,—it loses a portion of its probative force.

2. This it does of course from the mere consideration of the general chance of incorrectness, and without taking into the account any peculiar chance of incorrectness capable of being produced by the idiosyncratic character of any of the supposed intervening relators.

3. The circumstance of mendacity or bias affords likewise at every step an additional chance or probability of incorrectness, as well as of falsehood in toto: but this chance, depending upon idiosyncratic character and circumstances, is incapable of being estimated, any further than as the situation and character of individuals is taken into the account, and made the subject of special investigation.

4. Conceive divers supposed extrajudicial witnesses of the same remove or degree, each represented as confirming, in tenor or in purport, the supposed statement supposed to have been given by the rest:—for each such witness (credit given to the fact of their having existed in that character,) the evidence acquires a portion of probative force.

5. But the greatest additional portion of probative force capable of being thus acquired, can never be great enough to raise the probative force of a lot of hearsay evidence standing at that degree, to a level with one standing at a higher degree, i. e. in which the number of media it is supposed to have passed through is less.

6. Deponens (for example) states, that, on a certain occasion, a number of persons, whom he names (John Middleman, Thomas Middleman, and others,) concurred in assuring him that they were present when Percipiens was giving an account of a duel fought in his presence between the defendant and Occisus, in the course of which Occisus received his death wound. It is evident that, so far as Deponens is believed, the fact of defendant’s having been the cause of the death of Occisus will acquire an additional, and (setting aside idiosyncrasy) a determinate, portion of probability, for every additional person of which this number is stated as consisting. But, if there were a thousand such supposed intermediate and mutually confirmative extrajudicial relators, this could never impart to the hearsay evidence of Deponens any such degree of probative force, as if Deponens, instead of representing himself as having taken his information through these thousand media all at the same degree, were to represent himself as having himself taken it immediately from the lips of Percipiens.

Recapitulation:—I In the case of transmitted evidence, the probative force of the information presented immediately to the judge, is inversely as the number of degrees. 2. Supposing, at each degree, one witness, and no more; at each degree, it is therefore inversely as the number of media or witnesses. 3. But, at any given degree, it is directly as the number of witnesses standing at that same degree, and supposed to have agreed with one another in their respective extrajudicial statements in relation to the same fact.*

Hence it appears how inconsiderate and inadequate the provision is, of those laws, which, without entering into any such explanations as above, take upon them to obviate misdecision, by requiring, as a necessary ground to the validity of the decision, a specified number of witnesses. The number may be completed, and the probative force of the evidence may in fact, instead of greater, be but so much less, than if there were but one.

On the part of the judge, common honesty, enlightened by common sense, would (it may be thought) be sufficient to supply any such deficiencies on the part of the legislator, and thence to prevent misdecision on this ground. But the instances in which the light of common sense has been extinguished by the vapours of jurisprudential science, are, as it will be seen throughout, but too abundant: and to obviate in that quarter some apprehended deficiency in the article of common honesty, is the undisguised object of the legislator in the framing of such restrictive and exclusive regulations.†

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Transmitted evidence purporting to have passed through more media than one, may still be received, whatsoever be the number of such media: to wit, in every case in which makeshift evidence transmitted through no more than one medium would be received—always under the same conditions and restrictions. So likewise in the case where the individual description, or even the number of the media, cannot be ascertained.

To a mind impregnated with the principle of the excluding system, a proposition to this effect cannot but appear in the highest degree alarming. What? let in upon the mind of the judge a deluge of evidence, to the untrustworthiness of which there is no bounds?

Reasons in support of the rule—arguments à priori, supported and well supported, by arguments à posteriori—are, however, by no means wanting: reasons, and such (it is believed) as will be found satisfactory upon the whole.

1. The main and most striking reason is, that, by the alleged increase in the number of the media, no new facility is given to fraud. On the contrary, it can never answer the purposes of fraud—it would be unfavourable to the purposes of fraud, falsely, or even truly, to represent any such increase. That assurance of correctness cannot but be diminished in proportion to the number of media the evidence has passed through, is a truth, the force of which cannot but be felt by every mind to which it is presented. But a man actuated by fraud, intending deception, to be brought about by mendacity, will of course give to the information the most plausible, the most trustworthy, form, of which it is susceptible: he will never spontancously and unnecessarily multiply causes of untrustworthiness and distrust in regard to it.

A man says what is not only sooner said, but more likely to be believed, and yet not more likely to be detected if false, if he says, I had the fact from Titius, who said he saw it, but is now dead,—than if he says, I had the fact from Titius, who is dead, and who says he had it from Sempronius, who, if Titius is to be believed, gave Titius to understand that he saw it, but being dead also, cannot be called upon for his testimony.

Take, for example, a case from English jurisprudence.* The validity of a will being in question—a will purporting to have been executed in the presence of three witnesses, whose names were entered upon the face of it in the character of attesting witnesses:—two of these supposed witnesses were proved to be dead; the third, on her cross-examination, deposed, that, on her attending one of the other two in his last illness, about three weeks before his death, he pulled the will from his bosom, and acknowledged to her that it was forged by himself.† This evidence (it appears) was received, was credited, and the decision—a decision pronouncing the will a spurious one—grounded upon it. This supposed oral evidence transmitted through oral—this evidence, hearsay evidence as it was, was received and credited. It was regarded as not only veracious, but true, by the proper judges, judging from the whole complexion of the evidence on both sides.

Now to the point in question. Suppose that, instead of being deemed true, it had been deemed false and mendacious, and had been so accordingly. The will was, on this supposition, a genuine one: the story of its having been declared by one of the attesting witnesses to be spurious (spurious as having been forged by himself,) was a mendacious story trumped up by this witness, who, it being false, could not but have been conscious of its being so. Now then, suppose that, instead of saying that what she heard as above, Edition: current; Page: [157] she heard from the supposed forger himself, she had spoken of it as having been heard from John Middleman, now also dead, who said he heard it from the supposed forger, under the same circumstances as above: would the fraud in this shape have presented any more plausible title to credence than in the other? The answer, it should seem, will hardly be in the affirmative.

2. The danger of fraud (i. e. of deception by fraud) not being increased by the number of supposed media,—there remains the danger of incorrectness, i. e. of deception by incorrectness. But in this case, in whatsoever proportion the danger of incorrectness may be thus increased, the danger of deception does not increase with it: for, whatsoever be the danger of incorrectness, it is apparent to every eye, upon the very face of the evidence—apparent to all eyes alike, and in no danger at all of being set down at any value below its real value.

In regard to fraud, a possible observation on the other side is this:—Information being, according to your observation, more likely to be incorrect when transmitted through several media, than if transmitted through no more than one, and so in that light likely to appear to everybody,—a man who, meaning fraud, were to represent the information as having passed through more media than one, might by that device exempt his testimony from the imputation of fraud, and by that means gain for his false testimony, in this complex shape, a degree of credence beyond what could be gained for it by its being presented in the more simple shape. The propriety of this observation might perhaps be admitted: but at any rate it does not seem worth controverting on one side, or worth relying upon on the other side. For a lot of evidence to gain credence, it is not sufficient that it appear exempt from fraud; it must appear correct and true: it is not sufficient that it be regarded as being pure from material error from this or that particular source; it must be regarded as pure from material error from whatever source. But the fresh degree of untrustworthiness it is necessarily tinged with by every medium through which it passes, is essential to its very nature: and it is only in part, and not in the whole, that it can be done away by any marks of comparative purity in no more than one out of whatever may be the number of the media through which it is supposed to flow.

Add to which (if it be worth adding,) that this supposed receipt for putting a varnish of veracity upon mendacious evidence, is on no other supposition a promising one, than that of its remaining a secret—a secret in mendacious hands. But, the secret being now published (not to say that it is of itself sufficiently obvious,) the virtue of it, if it ever possessed any, or would have been capable of possessing any, is already at an end: the eventual offspring of fraud has been torn from her womb and been rendered abortive.

The truth of the above conclusions will be found to receive ample confirmation from general, and (it may be added) even necessary, practice.

Turn to any established system of judicature, an extensive class of cases may be found (and that the same, or nearly the same, in all,) in which transmitted evidence is received without scruple: whatsoever may be the number of media through which it purports to have been transmitted; or even although the very number, as well as the individuality, of such media be undiscoverable.—The class of cases in question is that in which the principal fact in question, the principal fact to be proved or disproved, belongs to the class of what may be called ancient facts: a fact which, supposing it to have happened, happened so long ago, that it would be in vain to look to any witnesses, forthcoming, and consequently still living, from whose examination it might be proved in the regular and most trustworthy mode. But there is nothing in the mere date of a fact, and that relative, measured from a particular point of time (the time in which the proof of it comes to be called for,) that is capable of rendering it credible upon weaker evidence than would be requisite to gain equal credence for it at another time. That a man of such or such a name, living at such a place, should at that place have been married to a woman of such a name, and had by her children of such and such names, is not a whit more credible if placed at the end of the seventeenth century, than if placed at the end of the eighteenth.

But (except in so far as the application of preappointed evidence may have happened to extend itself to the instances in question,) in former ages, there are no sort of facts that are capable of being established by any other than this weak and long-spun sort of evidence: and yet, for the purposes of legal decision, facts of various descriptions—facts, though placed at ever such remote periods, are, under every system of established law, continually adduced and credited.

Nor can it be said that, if such evidence be at all admissible, no causes except what are of light moment can with propriety be rested upon such slight evidence. In the case where the fact in question belongs to the class of ancient facts, none of those questions of which the great mass of questions of light moment is composed—small debts, slight assaults, and verbal injuries—can ever come upon the carpet. Questions of the greatest moment—questions relative to the title to estates, to immoveables to any amount, to Edition: current; Page: [158] hereditary powers and honours,—of this sort are the questions that come to be tried upon the ground of this slight evidence.*

Truths of the mathematical class—truths in any number, might be heaped together in this field: but in every instance, if attempted to be employed in practice, they would be found either altogether inapplicable, or, if applied, more likely to lead to misdecision than to justice.

Suppose, for example, that a mathematician, taking up the observations brought to view above, were to set to work in his own way, and, because demonstration is the fruit of his own science, fancy he had given certainty to the conclusions capable of being formed in relation to the trustworthiness of evidence. In a series of remotely-transmitted hearsay evidence, every article standing at a degree indicated by a higher number, is lower in the scale of trustworthiness than an article standing at a degree indicated by a lower number. Expressed, as of course it would be, in mathematical short-hand, by single letters instead of words or combinations of letters, a proposition to the above effect might put in a specious claim to the character of irrefragable truth. Yes: but in what way? On the supposition of a matter of fact, not announced, but gratuitously assumed, and, in a mathematical sense, altogether incapable of being proved: viz. that, in each instance,—an article of hearsay evidence at a lower degree being compared with an article of ditto at a higher degree,—in each medium or rank of mediums, the idiosyncratic trustworthiness of the intermediate witness or witnesses were on the same level. Suppose a suit, having for its subject-matter a pecuniary object of inconsiderable value: suppose on both sides a lot of hearsay evidence; on the side of the plaintiff, evidence of the second degree, the deposing witness and the supposed intermediate witness both of them universally known, and known as of the highest rank, as well in the scale of moral reputation as in that of opulence; on the side of the defendant, hearsay evidence only of the first degree, but Edition: current; Page: [159] the reporting witness—the judicial witness—a pauper notorious for mendacity. By the mathematician, the superior weight of evidence would be demonstrated to be on the side of the defendant; while, by everybody but the mathematician, it would be regarded, and, though without demonstration, yet with more reason, as being on the side of the plaintiff.

Add to this, that, in many instances, in which, not without good cause, hearsay evidence of many removes from the supposed source has been employed (for example, in English practice,*) not only the persons of the supposed intermediate witnesses, but even the number of the degrees, has not been ascertained, nor been capable of being ascertained. The general sense, conception, understanding, of the neighbourhood: in the case of a testimony to this effect, supposing the conception just, there must in every instance have been a matter of fact at bottom—some determinate matter of fact, the conception of which must, through the respective relations of a certain number of intermediate witnesses, singly or in ranks, have been transmitted to the ears of the deposing witnesses.

In a case of that description, the number of degrees not being ascertained, the requisite data not being given, matter for the hand of the mathematician would not be to be found. Truth, however, would be but the better served by the deficiency: for, the mathematician, with his scientific mode of deceit, not being capable of being set to work, no deception could flow from that source.

CHAPTER XI.: WHAT OUGHT, AND WHAT OUGHT NOT, TO BE DONE, TO OBVIATE THE DANGER OF MISDECISION ON THE GROUND OF MAKESHIFT EVIDENCE.

§ 1.: Impropriety of excluding any kind of makeshift evidence.

It has been seen how various in specie, and how abundant probably in number, are the instances in which makeshift evidence of one description or another, is habitually received, and must ever be received, in judicature.

It has been seen, that a danger of deception, and consequent misdecision, is in every instance naturally attached to the reception of makeshift evidence.

It has been seen, on the other hand, how—by the influence of a principle common to human nature, and in particular to men in the situation occupied by men of law—the danger of deception has been generally exaggerated: or, what comes to the same thing, such arrangements have been produced as could not be justified on any other supposition than that of a degree of danger beyond the danger really existing in each case:

That this exaggerated estimate has had for its cause an assumption, which, upon a closer examination, turns out to be decidedly erroneous; viz. that the danger of deception on one part is as the danger of falsity on the other:

That the erroneousness of this assumption is proved by every instance in which the prevalence of it is exemplified in practice; for the exemplification of it in practice consists in the determination formed and executed in each instance—the determination not to pay any regard whatever to the lot of suspected evidence; to consider the falsehood of it as certain, instead of being more or less probable; in a word, to regard it as certain that in each instance the disposition of the judge is to overvalue it: whereas the truth is, that, by every instance in which an exclusion is thus put upon a lot of evidence, a fresh proof is given that the disposition of men in judicial situations is to undervalue it—to treat as if it were incapable of having any weight at all, that which is never altogether without weight, in any instance:

That, under the most natural and extensively prevalent constitution of the judicial establishment, in which the tribunal is composed of one or more permanent and official judges, nothing can be more extravagant or inconsistent than the distrust of which the practice of exclusion is the practical result—whether the object of the distrust be the judge himself by whom the exclusion is pronounced, or his colleagues and successors.

So prone am I to give too much credence to evidence of this description, that I give it no credence at all—that I determine to disregard it altogether. So prone am I to decide on insufficient evidence on the one side, that I decide without evidence, and against evidence, in favour of the opposite side.

So prone are all my colleagues—so prone will all my successors be, to give too much credence to such untrustworthy evidence, that I, who alone am proof against such delusions—I, in order to preserve them against the influence of it, am determined for their sake to pronounce a decision, which, in the character of a precedent, shall tie up their hands, and prevent them from throwing open the door to any such delusive evidence. I, who cannot trust myself with the faculty of pronouncing from the evidence—I, confident in that exclusive portion of sagacity in which I have none to share with me, have determined by this means (such is my prudence) to impose on my colleagues and successors, Edition: current; Page: [160] to the end of time, the obligation of deciding, in every such case, without and in despite of evidence.

The only instance in which this system of exclusion has any colour of rationality, is that in which (as in one of the many forms of English judicature) the tribunal is composed of a set of ephemeral, unofficial, unprofessional, unexperienced judges, placed under the tutelage, and in some respects under the controul, of one or more permanent, official, experienced judges. The jury, were they to be trusted with such evidence, would to a certainty be deceived with it; therefore they never shall be trusted with it.

Supposing the conception of unfitness on the part of the professional judge to be trusted with such evidence—supposing this conception just, in its application to himself and his experienced brethren,—the extension of the same imputation to this unexperienced class of judges, seems, at any rate, clear of the charge of inconsistency,—the absurdity is gross and palpable, but it is all of a piece.

On the other hand, suppose the professional sort of judge to be proof against the influence of this species of delusion,—suppose the danger of being deceived by it not universally extensive, but confined to the non-professional class of judges,—the system of exclusion, even in this limited application of it, is still precipitate and indefensible. You conclude they will be deceived by it: why so hasty in your conclusions? To know whether they have or have not been deceived by it, depends altogether upon yourself. What? can you not so much as stay to hear their verdict? Condemn men unheard?—condemn thus your fellow judges? Apply, where as yet there is no disease, a remedy, and a remedy worse than the disease?—a remedy worse than the disease, when, had you but patience to wait for the disease, a remedy is in your hands as safe and gentle as it is infallible?

Day after day, you annul the verdict of a jury without disguise, and send the cause to be tried by another jury, on the alleged ground of its being a verdict against evidence. Would it cost you anything to extend the allegation to cases of this description? or to add to the cases calling for a new trial, that of a verdict grounded on untrustworthy and deceptitious evidence?

Thus much for supposition and argument. In fact, however, no such distinction has had place: the manacles once constructed, unexperienced and experienced hands are alike confined by them. Peers have been not less ready, not to say eager, to impose it upon themselves, than yeomen and shopkeepers to submit to it. It is by such easy means, and at so cheap a price, that favour, when agreeable and convenient, is seated upon the throne of justice.

Nor is the application of the system of exclusion by any means confined to English judicature. Under the auspices of Roman jurisprudence, it is perhaps, upon the whole, still more extensive. What difference there is, seems to be to the advantage of the English system. On the ground of personal untrustworthiness at least, the causes of exclusion are, on the one hand, still more abundantly extensive than in the English system; on the other hand, the adherence to them seems to be much less steady. The range of cases that afford to the judge the faculty of putting an exclusion upon the witness, is still more extensive: but in each instance it is rather a power than an obligation. Is it his pleasure to put an exclusion upon a witness? He may find a warrant for it. Is it his pleasure not to exclude the witness? He may likewise, and equally, find a warrant for it. In the English system, the cases in which, by the advantage of the conflict between preceding decisions, judges have been at liberty to decide either way, are but too abundant; but, on the other hand, in the cases to which the conflict has not extended, the option and the licence fails: where the decision that stands nearest to the individual case in question is not opposed by any other, usage will not permit its being disregarded.

Adopt the principle of exclusion, in the character of a security against deception,—adopt it in any case whatsoever, there is not any point at which its application can with any consistency be made to cease. Exclude for this reason any one lot of evidence whatsoever, by the same reason you are alike bound to exclude all evidence, and along with it all justice.

Discard the principle of exclusion altogether (that is, in all cases where the exclusion of the lot of evidence in question would have the effect of excluding all evidence from that source—from the source from which the information issues,)—adopt in its stead the principle of universal admissibility,—you do no more than give extension to a principle, the innoxiousness of which, in every point to which the application of it has been extended, has been made manifest by undeviating experience. Among the cases to which it remains to be extended, there cannot be any in which the evidence can be so weak, but that cases in which, being equally weak, it is admitted notwithstanding, abound, and have ever abounded, and without objection or complaint, to an extent, the magnitude of which affords a conclusive proof of the safety with which this sort of liberty may be allowed.

The cases in which weak evidence is admitted—weak to every imaginable degree of weakness—are cases in which whatever danger may be attached to the admission is altogether out of the reach of remedy:—1. Weak Edition: current; Page: [161] circumstantial evidence: evidence, in the case of which, the connexion between the principal fact and the supposed evidentiary fact is loose and remote to any degree of remoteness. 2. Weak direct evidence; in the case where the veracity or correctness of the testimony is endangered by some cause of illusion, or by some sinister interest, which either in specie is not taken into the account, or, in the individual instance, is out of the reach of observation.

The inconveniences attached to the observance of the principle of exclusion are altogether out of the reach of all remedy, palliative as well as curative. The dangers attached to the principle of universal admissibility are not only in themselves inferior, in a prodigious degree, to the mischiefs attached to the principle of exclusion; but, whatsoever they may amount to, at the worst, arrangements are not wanting by which (in one way or other) defalcations may be made, reductions may be applied, and at any rate certain limits may be set, to the mischief; that is, to the number of the instances of misdecision capable of flowing from this source.

These arrangements, such as the nature of the subject has suggested, remain to be brought to view in this place.

§ 2.: Arrangements for indicating the amount of the danger.

Arrangements having for their object to lessen the danger of misdecision from the admission of makeshift and other weak evidence, may be distinguished, in the first place, into such as have for their more immediate object the making known the actual amount of the danger, and such as have for their more immediate object the lessening the amount of it.

Arrangements having for their immediate object the lessening the amount of it, may combat it in either of two ways: by lessening the frequency of it, or by lessening the amount of it when it happens.

Provisions having for their result the bringing to view, in the shape of experience, the utmost possible amount of the mischief from this source, that is, the limits of that amount, would, in a variety of ways, be of unquestionable use:—

1. They will constitute a sure, and the only sure, basis of legislation, in this as in so many other cases: facts, showing, by the light of experience, the effects of existing institutions.

2. They will form a natural, proper, and most satisfactory accompaniment of any such arrangements as might be thought fit to be made, on this part of the ground of evidence, tending to do away, or narrow, the application of the excluding system.

3. They will form, in the first instance, a visible security against any durable and considerable inconvenience, considered as derivable from any such defalcation from the authority of the excluding system. Should deception, and consequent misdecision, be suspected, justly or unjustly, or running in any increased stream, from any branch of the newly-opened and apprehended source,—measures may thereupon be taken for remedying the mischief, at any time, and at its earliest stage. They will also serve as an anodyne to any panic terrors that might otherwise be produced by the contemplation of an innovation, which to some eyes may be apt, in spite of the clearest deductions of reason and even experience, to appear a formidable one.

4. On the supposition of the adoption of the other proposed remedial arrangements,—they will serve to give a correct view—the only tolerably correct view that can be given, of the degree in which those arrangements prove conducive to their intended purpose.

If the different modifications of makeshift evidence, and the other sorts of evidence particularly liable to prove weak, and, by their weakness, deceptitious, have been here delineated and explained with sufficient clearness,—a judge, and the scribes his subordinates, will find no difficulty in committing to paper, as often as a lot of evidence appertaining to any of these heads presents itself, the head to which it appertains. In such or such a cause (naming it,) on the side of the plaintiff, the evidence was of this or that description (naming it,) and no other; on the side of the defendant, there was no evidence, or evidence of this or that description (naming it:) the decision was in favour of the plaintiff, or vice versâ.

Referring a lot of evidence to the species to which it appeared to belong, in a system of nomenclature thus constructed, would be a sort of exercise analogous to that scholastic exercise, which, in the language of grammatical instruction, is called parsing; referring each word to that one of the genera generalissima of grammar, the eight or nine parts of speech to which it appears to belong.

If the principle thus brought to view—the principle of methodical registration—were applied to every suit without exception, whether turning or not turning upon any suspicious species of evidence,—the sort of register thus produced would, in more ways than one, be conducive in no inconsiderable degree, to the ends of justice; as has been shown in treating of preappointed evidence.

From a register of this kind, the utmost possible amount of the mischief produced by the admission of evidence of a suspicious complexion, as thus distinguished—produced by the aggregate of suspicious evidence, of all sorts taken together, and of each sort in particular—may Edition: current; Page: [162] be indicated, with the utmost degree of exactness that can be desired: and, by comparing year with year, it will be seen whether it be in a stationary state, in a state of increase, or of decrease.

Suppose, for example, that, in a given year, the number of instances in which, on one side, no other evidence was exhibited than what belonged to one or another of the species of makeshift or other suspicious evidence, amounted to 100; and, of this number, in 50 instances the decision went in disfavour of the side on which the suspicious evidence was exhibited; in the 50 other instances, in favour of that side. This last number would represent the utmost possible amount, on one hand, of the mischief (as likewise, on the other hand, of the good) produced by the leaving or throwing open the door to evidence of this sort. Thus much as to the aggregate of the cases of all sorts put together: and the same instruction would be afforded in relation to each sort taken by itself.

Though the number of the instances in which benefit or mischief has been produced by the admission of evidence of this description, would thus be given; yet, to exhibit the aggregate quantum of the benefit on the one hand, and of the mischief on the other, would require another head or two, having for their object the indication of the quantum of benefit or mischief thus produced in each cause. To furnish this information would require a statement of the species of causes to which the individual cause belonged, in each instance (for example, penal or non-penal; and, if penal, relative to what species of offence:) and, in the cases where money or money’s worth was at stake, the amount of the value adjudged, or claimed and refused to be adjudged, to either side.

§ 3.: Arrangements for diminishing the amount of the danger.

We come now to the second class of remedial arrangements applicable to the diminution of the quantum of mischief from this source: arrangements aiming, in a direct way, at the diminution of the frequency of it.

I. Oath of credence or sincerity on the part of the exhibitant (the party by whom the article of makeshift evidence in question is exhibited:) his declaration to this effect, viz. that, according to his persuasion, the information presented by the article of evidence is, so far as concerns the purpose for which he presents it, correct and true: such declaration being given under the sanction of an oath (where that ceremony is in use) or solemn declaration, and subject to vivâ voce examination as to the grounds and causes of such persuasion.

The test of sincerity thus proposed is no other than what, on a former occasion, was brought to view in the number of those securities, the refusal of which, on any occasion whatsoever, was represented as an omission altogether repugnant to the ends of justice.* It nevertheless seemed to call for a separate mention here: partly, lest, on an occasion on which the use of it is so manifest, it should fail of presenting itself to view; partly, because, on the occasion of its application to the present purpose, it finds the case attended with material circumstances, such as do not apply to it in other cases—with circumstances which call for particular observation.

The cases in which the demand for this security is most imperative, are those in which the evidence presented immediately to the judge, presents itself, not in the oral, but in the written form; viz. casually-written evidence, and minuted evidence, with any number of media interposed. In the cases where the evidence presented immediately to the judge is in the oral form, whatever security for sincerity is afforded by judicial examination in the usual manner, is applied, of course, to the judicial witness. Where there is no extraneous witness, this security is wanting; and hence the demand for a supply to the deficiency, by the examination of the party by whom the evidence (in this case the written evidence) is exhibited.

No good reason could be given why this same security (whatever be the worth of it) should not be applied, in like manner, to those modifications of transmitted evidence, in the case of which the evidence immediately presented to the judge is presented in the oral form; viz. hearsay evidence, and memoriter evidence. Indeed, unless excluded by special appointment of law, the general liberty of examination, applying itself to self-regarding as well as extraneous evidence, would involve the points in question in the present case. In the way of distinction, all that can be said here is, that, where there is another person (viz. the extraneous witness) to whom the security applies, the demand for the application of the like security to the testimony of the party, in the character of a self-regarding witness, is not quite so great.

In a certain point of view, the security thus afforded may be apt to present itself as little worth. A party, who, having been dishonest enough to procure or fabricate an article of evidence of this sort, is dishonest enough to make use of it, will come prepared for all the consequences; nor will he shrink from perjury—from the scarce punishable perjury necessary to give this support to it. True: but, in regard to the written evidence of this kind, many a man who, either knowing or suspecting the falsity or incorrectness of it, would present it notwithstanding, and thus Edition: current; Page: [163] let it take its chance, would at the same time be far enough from supporting it at the peril of the punishment of detected, or though it were only the shame of suspected, perjury: and, in regard to the oral evidence of this kind, not only would many a man, notwithstanding any secret suspicion entertained by him of its falsity or incorrectness, suffer it, if proffered to take its chance as before; but there are also others, who, though not bold enough to support a tale of perjury with their own lips, would yet be dishonest enough to send other lips upon the adventure.

Thus, in two cases, both of them but too common, the arrangements proposed would afford considerable security. At present, under every system of technical procedure, this security is altogether wanting. When judges, on so many occasions as we have seen, not only apply no discouragement to insincerity, but apply encouragement and even compulsion to the production of mendacity—when judges, by the whole tenor of their practice, proclaim a predilection for insincerity,—can it with any reason be expected that suitors in general, or more particularly that their professional guides and agents, the worshippers of the judicial hierarchy, should in general be averse to it, or, when employable with safety, backward to employ it?

II. To this head also belongs another arrangement, all along proposed, for allowing to the judge (to be exercised at his discretion) the power of exacting from the party in whose favour the decision operates in the first instance, security for eventual reinstatement; for affording to the other party completely adequate satisfaction, in case, by the subsequent exhibition of more trustworthy evidence from the same original source, the decision having the makeshift evidence for its ground should turn out to be erroneous.

On those occasions, the description of the contingency was confined to the particular event bearing a special relation to the case then in contemplation—the event of the disproof of the makeshift evidence, by other evidence emanating from the same original source. But, from what source soever any such subsequently corrective evidence may have issued,—if it be true, and the decision called for by it be different from that which it finds in force, the practical inference (it is evident) is precisely the same.

III. In what cases, for the remedying of the injustice liable to be produced by the decision of one tribunal, liberty should be granted or obligation imposed of submitting the cause to the cognizance of another, is a question that belongs not to the present subject, nor to the present work.

In the extraordinary sort of case here in question, that of a decision grounded on such weak and comparatively untrustworthy evidence,—such reference might perhaps with propriety be prescribed or allowed of, in causes and circumstance in which, supposing the decision grounded on evidence of the ordinary stamp, such reference might not be eligible. Without attempting at present to decide upon the eligibility of any of these arrangements, the present indication will be confined to such remedies of this stamp as the nature of the case admits of. The question of their ultimate eligibility properly appertains to another subject, that of Procedure.

1. Liberty of appeal; i. e. of appealing to another tribunal, whose decision shall have for its ground this same body of evidence, without either addition or defalcation. The person by whom such appeal (if preferred at all) will be preferred, is of course a party, and that party to whose prejudice the decision, having the supposed insufficient evidence for its ground, is regarded by him as having operated.

2. Liberty of reference: power given to the judge to refer the decision, in a case of this sort, to another tribunal (naturally a superior tribunal,) if he thinks fit; with or without a provisional decision of his own annexed to it.

An arrangement of this description is superseded (it may be thought) by the one immediately preceding it: if appeal be allowed, the party in whose disfavour the decision (the decision grounded on the comparatively untrustworthy evidence) operates, will, if he considers it as being injurious to him, appeal of course: if he does not regard it as injurious to him, the case calling for a reference does not exist: so that, in each and every case, such reference is of no use.

To this it may be answered—1. The party, howsoever willing to appeal, may be disabled by the expense. 2. He may be deterred by the contemplation of the expense and vexation added together. 3. He may be deterred by the consideration of the weight and authority of the opinion declared by the court below. The court above—whether, if it had to frame a decision on the subject in the first instance, it would or would not have pronounced the same as that which has been pronounced below—may not regard the case as clear enough to warrant the reversing a decision already pronounced by a competent judicature.

Upon all these considerations taken together, it will probably appear that the demand for the power thus proposed to be given to the judge, would by no means be superseded by the power of appeal, if given to the party.

Moreover (in case of appeal,) argument, and consequently expense or vexation on the part of the appellant, and consequently on the part of the adversary, would be naturally (though, it should be added, not necessarily) allowed: whereas, in case of a reference made (as above) by one tribunal to another, such Edition: current; Page: [164] argument, with the vexation and expense attached to it, would not be so much in course.

3. Obligation of reference—obligation superadded to the power above proposed to be given to the judge: the reference in this case being or not being accompanied by a provisional decision previously pronounced by himself.

4. In the case of trial by jury,—power to the judge (the professional directing judge) to order a new trial, if dissatisfied with a verdict given on the ground of the suspicious evidence.

This arrangement takes for granted a previous charge, or direction from the judge, warning the jury against the error into which the order for a new trial assumes them to have fallen, by deciding in favour of the evidence, the insufficiency of which is thus assumed.

In English law (it has already been observed,) new trial granted, at the instance of a party, on the ground of the verdict’s being against evidence, is in familiar use: the extension would be a very slight one, were the power extended to the case of a verdict supposed to be grounded (as above) on insufficient evidence.

In the case of exclusion in general, the assumption is, that, if the jury were suffered to hear the evidence, they would be sure to be deceived by it. Experience, had judges but patience to consult her, would have superseded the demand for this rash suspicion. Will they be deceived by it? Stay and see. Should their decision prove erroneous, then, and not till then, it may be proper to take measures for obtaining a new one.

§ 4.: Importance of admitting makeshift in the character of indicative evidence.

The principle employed for fixing the conditions to be annexed to the admission of makeshift evidence, was this:—viz. not to admit any such comparatively untrustworthy evidence, where evidence to the same effect is to be had in a more trustworthy shape, from the same source.

But, supposing the sources of information to exist, will the information be always to be obtained from them in any such more trustworthy shape? He whose interest it is to bring forward the information in question, will it be in his power to draw it forth from those superior sources? This will depend upon the sagacity and industry displayed on this ground by the legislator—upon the care taken by him to afford the requisite powers to him (whosoever he be) whose inclination and will is in a state of preparation for this service.

The powers in question are those which are requisite to the investigation of a chain or thread of evidence—to the discovery of such evidence as the individual nature of the case may have happened to afford; and (when discovered) to the securing of its forthcomingness for the purposes of justice.

To take the arrangements adapted to this purpose, constitutes one of the principal functions of the system of procedure: to that subject accordingly they belong, and not to the subject of the present work. A brief intimation of the mode in which evidence, fit or unfit to constitute a ground for definitive decision, may be applied to this incidental purpose, may, not without reason, be expected to be found here.

By the term indicative evidence, I understand, not any particular and separate sort of evidence, such as circumstantial, direct, self-regarding, and so forth,—but evidence of any sort, considered as being productive of a particular effect; viz. the indicating or bringing to view the existence, certain or probable, of some other article of evidence. Indicative evidence is evidence of evidence.

To apply the distinction to the subject of makeshift evidence. If the rule above laid down in this behalf be a proper one, no article of makeshift evidence ought to be received (viz. into the list of the articles constituting on that side the ground for decision,) where evidence in a more trustworthy form is to be had from the same source: in other words, no such article of evidence ought to be received into the budget of documents designed by the judge for ultimate use. Be it so: but neither of this description, nor of any other conceivable description, can any sort or article of evidence be named, which it may not be proper to employ in the character of indicative evidence; viz. as a help to the discovery or procurement of other evidence, such as may be fit for ultimate use.

Thus, for example, in the instance of hearsay evidence—hearsay evidence of the second degree—supposed oral evidence transmitted through two media. Says deposing witness, in his examination before the judge,—Middleman, as he said to me, heard Percipiens say, that he was by, and saw what passed, when the defendant gave Occisus his death’s wound; and there ends his evidence. Now then, Middleman and Percipiens, are they both alive? The evidence is plainly unfit to be received into the budget for ultimate use: accordingly, neither would it in any case be so received into any such collection under English law.

But ought such information to be altogether unemployed and lost? By no means. Unfit, in the character of evidence, for ultimate use, it is not the less fit for serving in the character of indicative evidence. Let Percipiens be convened before the judge; and if, on being examined, he gives evasive answers, or says he knows nothing about the matter, let Middleman be convened to confront him;—that, Edition: current; Page: [165] by means of Middleman’s testimony, the misrecollections (if any) in the evidence of Percipiens, may, if possible, be corrected—the deficiencies in his recollection may, if possible, be supplied.

The same explanations are alike applicable to every other modification of makeshift evidence. Casually written evidence is indicative, with relation to the judicially extractable oral evidence of the writer of the script: transcriptural evidence is indicative, with relation to the original script: minuted evidence is so, with relation to the writer of the minute, as well as to any extrajudicial witness whose oral statement or narration is the subject of it: memoriter evidence is so, with relation to the script, the supposed tenor, purport, or effect of which, is thus reported: reported real evidence is so, with relation to the real evidence which is the subject of the report: and, in case of the interposition of divers media, transmitted evidence of any degree is indicative, of course, of all superior degrees of evidence from the same original source.

From the bare description of this species of evidence (that is, of the use thus to be made of any species of evidence,) it will be manifest beyond dispute that any system, which, for the purpose of any sort of cause, penal or non-penal, should (unless for the avoidance of preponderant delay, vexation, and expense) omit to make use of makeshift or other evidence in this way,—to make use of it to the utmost, for the purpose of discovering and obtaining such information as is to be had in a state fit for ultimate use,—is, to the amount of such omissions, defective, and unconducive to the ends of justice.

The proposition is not a purely hypothetical one. In the instance of the English system of procedure, exemplifications of it but too extensive may be observed. In the penal branch, in cases of felony unclergyable and clergyable,* or (to speak without nonsense) in first and second rate crimes, evidence, applicable or not to ultimate use, becomes by accident applicable to this use: it serves for the discovery, and thence perhaps for the obtainment, of evidence ultimately employable. This incidental use is extendible always by accident,—(for design (design, at least, directed to the legitimate ends of justice) is an incident still wanting to the jurisprudential system of English procedure.)—this use is extendible, to a certain degree, to inferior offences. But, to causes non-penal, carried on in any branch of the regular mode (whether it be the branch called the common-law branch, or the branch called the equity branch,) it is scarce in any case extendible. If the evidence which the witness whom you have summoned has it in his power to give, happens to be of that sort which is applicable to ultimate use, well and good,—it may be put to use accordingly: if not, the arrangements of procedure will not suffer it to be put to the other use: if you have no evidence from any other source, be the evidence obtainable from this source ever so conclusive, you lose your cause.

CHAPTER XII.: ABERRATIONS OF ENGLISH LAW IN REGARD TO MAKESHIFT EVIDENCE.

Such are the arrangements, such the rules of judging, that have been suggested by a regard for the ends of justice: the avoidance of misdecision, on one hand; and, on the other, the reducing, on every occasion, to their least dimensions, the collateral and never completely avoidable inconveniences of delay, vexation and expense.

If the above arrangements are well adjusted to such their ends—and if the arrangements actually pursued by English jurisprudence were also well adjusted to these same ends,—those actually existing arrangements could not, in any point, he very widely distant from the above proposed ones. So much for the argumentative picture of things. The picture next to be given must be taken from life. If, on this occasion, the reader has prepared his mind to view a system of arrangements suggested by, and bonâ fide directed to, the ends of justice, great indeed will be his surprise and disappointment. If, on the other hand, the coutrary hypothesis be assumed—if, on considering the natural opposition of interest on this ground between the governors and the governed, his assumption should be, that, in the views and wishes of the authors of these arrangements, the difference between right decision and misdecision has been in general a matter of indifference—and that, in so far as was conducive to the profit of the governing profession, not the minimum, but the maximum, of delay, vexation, and expense, has been the object of endeavour,—he will find every object consistent with that assumption—every arrangement flowing naturally from that source.

An explanatory hint must in this place be given to the non-professional, and more particularly to the non-English, reader. Observing one copy of the same document rejected, at the same time that another copy of the same instrument is admitted,—if, for anything that appears, both are in existence and producible, it may naturally enough appear to him that the rejection of either, however ill-founded in principle, would be matter of indifference in practice. Reasonable as it is, the supposition would be erroneous and delusive. Under a different system of procedure—under Edition: current; Page: [166] the system drawn from Roman law, and generally prevalent on the continent of Europe,—it would either be agreeable to, or at least less widely distant from, the truth. But in English procedure, no option thus made, if it be exclusive, is ever a matter of indifference. The document thus excluded is always the document, whatever it be, that happens to have been tendered. The consequence of the exclusion is, not a simple reference to the approved document, without further delay, vexation, or expense, but an actual loss of the cause to the party whose document is thus rejected. The direct injustice thence resulting as to the main point in dispute, is not indeed, in this case, in every instance, irreparable; but in many and many an instance it is: either because, under the existing arrangements, the door is not left open to a fresh demand on the same ground; or because, in the interval, and before it can receive a decision, either some necessary evidence has perished, or the fund necessary for the alimentation of the suit has been exhausted. Be this as it may, and according to the least calamitous result, a fresh trial, hearing, or whatever be the name of it, is necessary—in a word, a fresh suit: in consequence of which, the delay, vexation, and expense, bestowed upon the preceding one, are in a great part (or, as the case may be, in the whole) wasted and thrown away.

Here then, once for all, let this deplorable and but too indisputable truth be borne in mind: that—howsoever it might be under a natural system, and even in the technical system of any other country—in the technical system of English jurisprudence there are no innoxious, no completely reparable, nor anything like completely reparable, mistakes; and that, whatsoever absurdity is discernible—fraud, and the spirit of extortion, may or may not have been the cause—plunder, oppression, and affliction, are infallibly the result.

On this ground, as on every other part of the vast demesne of jurisprudence, whatever is at variance with the ends of justice will be to be referred, in proportions not always to be distinguished, to the two grand sources of misdecision,—improbity and folly. The improbity, has for its cause the as yet unremedied but not irremediable, opposition of interests between this class of governors and the governed. The folly has for its cause, at least for a very principal one of its causes, one of the essential characters of jurisprudential law—the taking the conceptions and practice of a less experienced and less informed, as a standard for the notions and practice of a more experienced and better informed, age.

I proceed to bring to view the most important of the aberrations from the above rules, exemplified in English law; together with the inconveniences with which they respectively appear pregnant.

1. The first consists in admitting, at the instance of the plaintiff, to the prejudice of the defendant, in the lifetime of the defendant, a letter or memorandum in his hand: the defendant, though alive, being neither compelled nor permitted to stand forth himself in the character of a deposing witness, to be examined upon oath (as a non-litigant witness would be) touching the facts brought to view in such written discourse.* And so in the case of a written statement of the plaintiff’s, at the instance of the defendant.

By the influence of a superstition, which has been already touched upon, and which will be more thoroughly discussed in another place, the evidence of a defendant is not permitted to be extracted in the mode recognised to be the best. But the objection confines itself to the best mode: no sooner does a bad mode present itself, than the prohibition is taken off.

Refusing to hear the testimony of a defendant, extracted in the way of vivâ voce examination, the law refuses (as may well be imagined) to receive the testimony of the same person exhibited in the form of written non-judicial evidence—in the form of a letter or memorandum, not designed at the time of writing it (or at least not purporting to be designed) to be exhibited as evidence. So far, at any rate, it is consistent: and, admitting the propriety of not suffering the defendant to be examined in the character of a witness, unexceptionable.

But when the plaintiff, having by any accident possessed himself of a letter or memorandum in the handwriting of the defendant, thinks fit on his part to exhibit it as evidence; then the rule goes for nothing, and the evidence is admitted. In this admission, the law considers itself as safe against deceit: and so it undoubtedly is; viz. on one side, the side of the plaintiff,—the only side to which, on this occasion, its views appear to have extended. To the prejudice of the plaintiff, the admission of it will not be productive of injustice. Why? Because it is he who produces it. So far is right: the reason is a conclusive one. But the defendant? are his interests taken equal care of? The answer is, No: they are entirely neglected. In a multitude of cases—each of them capable of being realized, each of them, doubtless, every now and then realized,—conclusions as contrary to truth, as they are prejudicial to the defendant, will every now and then be drawn: necessarily drawn, when a deaf ear is turned to those vivâ voce explanations, by which the truth of the case might, in its whole extent, be brought to light.

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2. The second aberration consists in the exclusion put upon the like written testimony of a witness, litigant or non-litigant, after his decease: a point of time, after which, on the one hand, the examination of such witness is become impossible; on the other hand, the capacity of profiting, in his own person at least, by such his testimony, supposing it false and fraudulent, is at an end.

Such (it will be seen) is the course taken in general by the English law: a course crossed indeed by a multitude of exceptions, the propriety of which can by no other arguments be maintained, than by such, the validity of which is the condemnation of the general rule.

In the whole field of evidence, which is as much as to say, in the whole field of justice, few points can be of greater importance. Under this head come the books of a shopkeeper, including the register kept by him of the monies due to him. That these books should not of themselves, and during the master’s lifetime, be conclusive evidence in his favour, the evidence unsanctioned, and the author uncross-examined, is a proposition too plain to stand in need of argument. Each shopkeeper might, at that rate, impose a tax to any amount, on any number of persons, at his choice. That the written evidence even of his servant in his behalf should not be received as conclusive—should not be received at all during the lifetime of such servant, such servant being capable of being examined in the regular mode, and yet not examined—is another proposition which I have endeavoured to establish. But if, after the death of such servant, the entries made by him were not permitted so much as to be received in the character of evidence, what would be the consequence?* That every tradesman’s title to the monies owing to him for his goods, would be dependent, completely dependent, on the life of the servant, the book-keeper, the journeyman, the porter, by whom they had been respectively delivered to his customers. The death of the servant, and the ruin of the master, would be the effect of the same inevitable cause.

A word, a phrase, a broken hint, an uncompleted and perhaps uncompleteable sentence,—such is the garb in which Reason clothes herself on those great and rare occasions, on which she vouchsafes to visit the shelves of English law. Sometimes the word “necessity,” sometimes the phrase “course of trade,” is the fragment of a reason, under favour of which a pretence is sought for the breach made, upon this ground, in the irrational and intolerable rule. But to what use introduce necessity?—what justification can necessity afford for the breach of any rule laid down by reason—of a rule prescribed by any comprehensive view of the dictates of utility? The species of evidence being admitted, one or other of two opposite results—deception, or non-deception, is the most probable. If admitted, would it be oftener productive of deception, and thence of erroneous decision, than of a just persuasion, and thence of a decision according to truth and justice? In this case, where is the necessity (let what will be understood as signified by that vague appellation)—where or what is the necessity that can warrant the admission of the fallacious light?

Apply the same observation to the compound term, the course of trade. Trade is a good thing; it is universally agreed to be so: great sacrifices, though not always very advantageous ones, are made continually in its service. But is it in the nature of trade, any more than of any other desirable object, to be benefited or promoted by the letting in a species of light, of which injustice oftener than justice will by the supposition be the consequence? Is it in the nature of trade, any more than of justice, to receive advancement by a system of decision, of which the effect will be, to put the fruits and profits of trade more frequently into the pocket of a cheat than of the lawful owner?

Of two things, one. The evidence admitted either promises to be most frequently productive of justice, or of injustice. If of justice, no such word as necessity or trade can be necessary—if of injustice, no such word can be sufficient, to warrant the admission of it.†

It has been observed already, that there is a whole class of facts, for the proof of which, in spite of all excluding rules, a door is thrown wide open to all sorts of evidence without scruple: not only to this but too suspicious evidence, but to the much more suspicious and fallacious evidence, which, by English lawyers, has so often been confounded with it: I mean hearsay evidence. And what are these facts? I can think of but one attribute by which, indeterminate as it is, they can be designated; and that is, ancient: ancient facts—facts tending to the establishment of family relation, locally obligatory custom, ancient possession of rights of partial ownership, and the like. If, on one part of the ground more than another, the argument from necessity can be said to apply with peculiar force, it will be on this. On this sort of ground, exclude this sort of evidence, you exclude all evidence. The witch of Endor, the sibyl once so complaisant to the curiosity of Ulysses, are not now in office. Ghosts cannot now be brought into court, obtorto collo, to be sworn and cross-examined. An interval Edition: current; Page: [168] of a certain length, has it elapsed between the present time and the time of the fact or supposed fact?—such evidence as the nature of things furnishes, you must admit, or none. Written extrajudicial evidence, if it be to be had, howsoever it happens to present itself, it is your best chance: failing this, even hearsay evidence—hearsay evidence, remote from the fountain head by any number of degrees, and with or without being able to trace it to the fountain head, or so much as to number the degrees. Such is the choice, in respect of sorts of evidence: one of these two, or none. But, even in this case, of what avail, or even import, is the plea of necessity, any more than in any other? As to the import, here indeed it is plain enough that such is the case—this evidence or none. But, in this case, as in every other, is not the absence of all evidence a preferable result to the presence of a species of evidence, which, be the case what it will, is more likely to give birth to a wrong judgment than to a right one?

In vain would it be to say, that in this case the danger of deception is in any respect less than in any other: on the contrary, it is even greater. Recent testimony—testimony concerning recent facts, if mendacious or otherwise incorrect, possesses its chance of receiving confutation or correction in the regular and most satisfactory mode, from the sanctioned and scrutinized testimony of persons still alive: circumstantial evidence will, in the character of indicative evidence, afford a clue to this or that lot of vivâ voce evidence—a clue which fraud, with all its cunning, may not have suspected. But, in the case of ancient facts, who shall follow out the clue that has been broken by the same hand that cut the thread of life?

It may be thought superfluous, after this, to add any such reflections as the following:—1. That, in point of distance of time, no determinate line has been so much as attempted to be drawn, nor could easily be drawn, between these ancient facts and facts of more ordinary occurrence; 2. That, among the facts thus treated as ancient facts, are facts that may have been but as of yesterday; 3. That in particular, in a case that has given birth to a decision pronouncing the admission of even hearsay evidence, the length of interval extended not beyond twenty years; 4. That the length by which, in the proposed rule, the place of the line which separates admission from exclusion is proposed to be determined, is the length of human life—a length which, though in one case it may be but that of an atom, may in another case be some number of times the above recorded and admitted length of twenty years; and 5. That the true criterion between cases for admission and cases for rejection, is constituted, not by the length of time, considered in itself, but by the existence or non-existence of the faculty of submitting the testimony to the action of the scrutinizing and purifying tests. The witness, in mind as well as body, is he still ready at the call of justice? Admit not his written statement, though it have an antiquity of sixty, of eighty years, to plead for it. Has he taken his departure from the world we live in? Admit the paper, though the ink have scarce yet ceased to wet it. But may it not then be false? false, and fabricated for the purpose? Indubitably it may: though, in our own times at least, such fraud, or any mark of such fraud, committed by a hand so circumstanced, is neither natural nor common. But is the presence of such fraud, in each case, more probable than the absence? And, where present, is the success of it more probable than the failure, after all the warning recommended to be given of it, and which so naturally will be given of it? And are these the only times in which the propensity to fraud has been to be found in the nature of man? Forged deeds, and other fruits of lettered fraud, are they in greater proportion to true and authentic writings in these our times, such as they are, than in the times of monkery and monkish charters?

Such are the questions of minor account, that present themselves as applicable to this particular case. But have they not been already superseded and rendered superfluous by that broadest and all-comprehensive line of argument, which covers the whole of the ground to which the species of evidence now before us is applicable?

3. A third aberration consists in receiving the testimony of a witness in the unsatisfactory form of casually written evidence, upon the ground of a mere unforthcomingness on his part at the time; without any inquiry into the cause, whether temporary or perpetual;* and without provision for reparation of the wrong, in the event of its being proved false by subsequent vivâ voce examination in the regular and proper mode. The admissibility of this evidence, under these circumstances, being established, what would be the consequence? That, where the value at stake was sufficient to pay the expense of the fraud, a man would procure his witness, in the first place, to fabricate a piece of written evidence adapted to the circumstances of the case; in the next place, to keep out of the way till after it had been put to its judicial use, and a decision had been grounded upon it. Or, by procuring the like testimony from a man, whose known intention it was never to revisit Edition: current; Page: [169] the country in which it was to be fabricated, the expense of purchasing absence might thus be saved.

Not that it follows, by any means, that if, under favour of the rule protested against, the characteristic fraud were even to be frequently attempted, the attempt would be as frequently, or anything like as frequently, successful. With the warning which it is here proposed should be given of it, and which, without any such proposal, would naturally be given of it, to the judge of fact by the judge of law, I should not expect to see such evidence frequently productive of a decision on that side, even where the truth of the case was on that same side; much less to see any frequent reason for suspecting that fraud had by this means been rendered triumphant. But where, without incurring any such risk, the purposes of substantial justice might in an equal degree be accomplished, the danger, whatever it may amount to, seems to have nothing to compensate it.

Symptoms of a tendency at least to admit in this unguarded way evidence in its own nature so suspicious—so apt to be fallacious, has been here and there betrayed by English law.

4. In regard to the admission of transcripts, the aberrations of English law are still more remarkable.

In the case where the original is not absolutely unproducible, the question respecting the admission of transcripts will be apt at first to present itself as of little or no practical importance: if the transcript will serve, let it be admitted—if not, let the original be produced. Thus, in effect, the matter will stand, taking the world at large. But in English procedure, the spirit of chicane has, on this part of the ground, as on so many others, contrived to raise a cloud of frivolous distinctions, under the influence of which the interests of justice have in numerous instances gone to wreck. In that system of procedure, so far as the use of trial by jury extends, whatever evidence is capable of contributing to form the ground of decision, must be presented, every part of it, within the compass of a given part of a given day. At that period a transcriptural document being presented, if it be a case where a transcript is allowed to be received in place of the original, well and good; if not, and the document is a necessary one to the side of the party by whom it was produced, the cause is lost for that time at least, i. e. in respect of the action then depending: and whether the loss be reparable or no, depends upon a variety of circumstances. If the transcript be presented on the defendant’s side, and essential to it—and if the case be of the number of those in which a transcript, or that sort of transcript, happens to be found inadmissible,—woe to the man whose lot it happens to be to occupy the station of defendant! If it be the pleasure of the judge to grant him a new trial, on condition of taking his chance for that expensive remedy, the omission may be repaired—the original may be produced. But at the best, and even at that expense, the reparation of the omission—the saving his cause from perdition and injustice, and himself perhaps from ruin—depends not upon himself; whereas, were his station in the cause that of the plaintiff, it would depend upon himself to suffer what is called a nonsuit, and, at the price of a fresh action, to substitute the admissible document for the inadmissible one.

On the ground of transcriptural evidence, among the inconveniences by which suitors are apt to be tormented, those which consist in undue decision or failure of justice having the spuriousness or incorrectness of this species of evidence for their cause, constitute but a small proportion of the aggregate mass. It is in the triple shape of delay, vexation, and expense, that the principal part of the mischief displays itself.

Transcripts are made of a mass of writing to any extent, where a glance of the original would be sufficient:

Of a mass of writing, of which but a small part is relevant, or at least necessary to the purpose, the whole is transcribed without distinction:

Transcripts are made by an official hand, at an extra expense—an expense sometimes altogether arbitrary, and most commonly excessive, as being at a monopoly,—where transcripts made at an ordinary expense might afford a lot of evidence equally satisfactory to an impartial or candid mind:

Originals are fetched from unlimited distances, in official, or other appropriate, and consequently high-paid custody,—when transcripts in the way of extract, or even entire, might be obtained and sufficiently authenticated at an inferior price.

The mass of delay, vexation, and expense, which has for its cause any real bonâ fide disbelief or suspicion as to the genuineness or correctness of a lot of transcriptural evidence, is perhaps not a tenth, not a twentieth, not a hundredth part, of that which has mala fides, on the one part or the other, for its cause. In the view of guarding against spuriousness and incorrectness, certain regulations are established. If, in any the most minute particular, party A is found departing from these regulations, party B takes advantage of the flaw. Each party, sure of being opposed by morally unjust, though legally just, objections on the part of the other, heaps paper upon paper, expense upon expense. A party, though secure in his own mind against objection on the part of his adversary, will, for the sake of inflicting vexation on him, pretend Edition: current; Page: [170] to apprehend vexation from him; or rather, without so much as the necessity of any such pretence, act as if he apprehended it. Agents of the parties, on both sides, and of all descriptions, official scribes of all descriptions, all have an interest in increasing the load by additions in themselves unnecessary; all have pretences for giving birth to such increase; all have it more or less in their power to give birth to it. Judges, by whom such abuses should be watched with a sleepless eye and averted by an inexorable hand, contribute not so much to reduce the load as to increase it; by useless and groundless punctilios, the result of some caprice of the imagination—of partial views, in which the contemplation of some ill-chosen means has eclipsed the prospect of the ultimate and proper end, the prevention of the inconveniences so often mentioned.

Parties, their agents, and the subaltern officers of justice, each on his own part aims at profitable injustice: judges second the endeavours of all.*

5. Few questions have been more agitated in English law than those which relate to the admissibility of, and the effect to be given to, different articles of adscititious evidence.† The subject occupies sixty closely printed nominal octavo, real quarto pages, in Phillipps’s exposition of the law of evidence. Of a subject thus extensive, more than a very general view cannot be expected to be given in the present work: nor is it necessary for our purpose to go beyond the more prominent features.

One remarkable circumstance is, that the whole body of the rules of law relating to this subject are, with a very small number of exceptions, exclusionary. Either the decision given in a former cause is said not to be evidence; and then it is that decision which is excluded: or it is said to be conclusive evidence; and then an exclusion is put upon the whole mass of evidence, howsoever constituted, which might have been capable of being presented on the other side.

In saying this, enough has already been said to satisfy any one, who has assented to what was said in a former chapter concerning adscititious evidence, that nearly the whole of the established rules on this subject, except to the extent of the single and very limited case in which it was there seen that exclusion is proper, are bad. Accordingly, the rule that a judgment directly upon the point is conclusive in any future cause between the same parties, is a good rule—it is almost the only one that is.

Even this rule is cut into by one exception: that verdicts in criminal procedings are not only not conclusive, but are not even admissible evidence, in civil cases.‡ For this exception, two reasons are given: the one founded on a mere technicality—the other on a view, though a narrow and partial one, of the justice of the case. The first is, that it is res inter alios acta: the parties in the civil cause cannot, it is said, have been also the parties in the previous criminal one, the plaintiff in a criminal proceeding being the king. It is obvious, however, that the king’s being plaintiff is in this case a mere fiction. Although the party in whose favour the previous verdict is offered in evidence, was not called the plaintiff in the former proceeding, there is nothing whatever to hinder him from having been the prosecutor, who is substantially the plaintiff. Now if he was the prosecutor, and his adversary the defendant, it is evident that the cause is between the same parties; that it is not, in reality, res inter alios acta; and that if it be treated as such, justice is sacrificed, as it so often is, to a fiction of law.

The other reason is, “that the party in the civil suit, in whose behalf the evidence is supposed to be offered, might have been a witness on the prosecution.”∥ This is true. He might have been a witness; and the previous verdict might have been obtained by his evidence. But it might be, that the contrary was the case. Whether he was a witness, or not, is capable of being ascertained. If he was not a witness, why adhere to a rule which cannot have the shadow of a ground but upon the supposition that he was? But suppose even that he was a witness, and that the verdict which he now seeks to make use of, was obtained from the jury by means of his own testimony. This will often be a very good reason for distrust; but it never can be a sufficient reason for exclusion. Under a system of law, indeed, which does not suffer a party to give evidence directly in his own behalf, it is consistent enough to prevent him from doing the same thing in a roundabout way. A proposition, however, which will be maintained in the sequel of this work, is, that in no case ought the plaintiff to be excluded from testifying in what lawyers indeed would call his own behalf, but which, by the aid of counter-interrogation, is really, if his cause is bad, much more his adversary’s behalf Edition: current; Page: [171] than his own. Should this opinion be found to rest on sufficient grounds, the reason just referred to for not admitting the former verdict as evidence, will appear to be, on the contrary, a strong reason for admitting it.

Thus much may suffice, as to the first rule relating to this subject in English law—a rule which has been seen to be as reasonable, as the above-mentioned exception to it is unreasonable. We shall find few instances, in the succeeding rules, of an approach even thus near to the confines of common sense.

For, first, a judgment is not evidence, even between the same parties, “of any matter which came collaterally in question, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment.”* By the words not evidence, lawyers sometimes mean one thing, sometimes another: here, however, not admissible in evidence, is what is meant. That it ought not to be conclusive as to any fact but such as the judgment, if conformable to law, necessarily supposes to have been proved, is no more than we have seen in a former chapter: that, however, because it ought not to be made conclusive, it ought not to be admissible, is an inference which none but a lawyer would ever think of drawing. A common man’s actions are received every day as circumstantial evidence of the motive by which he was actuated: why not those of a judge?

The next rule is, that a verdict or judgment on a former occasion, is not evidence against any one who was a stranger to the former proceeding: that is, who was not a party, nor stood in any such relation to a party, as will induce lawyers to say that he was privy to the verdict. The reason why a judgment under these circumstances is not evidence, is, that it is res inter alios acta. But we have seen already† that its being res inter alios acta, though a sufficient reason for receiving it with suspicion, is no reason for excluding it.

The more special reason, by which, in the case now under consideration, this general one is corroborated, is, that the party “had no opportunity to examine witnesses, or to defend himself, or to appeal against the judgment.”‡ This being undeniable, it would be very improper, no doubt, to take the judgment for conclusive. On this ground, what is the dictate of unsophisticated common sense? A very obvious one. As the party has not had an opportunity to examine witnesses, to defend himself, or to appeal against the judgment, at a former period, let him have an opportunity of doing all these things now: let him have leave to impeach the validity of the grounds on which the former judgment was given, and to show, by comments on the evidence, or by adducing fresh evidence, that it was an improper one: but do not shut out perhaps the only evidence which is now to be had against him, merely because it would be unjust, on the ground of that evidence, to condemn him without a hearing. In the nature of a judgment is there anything which renders a jury less capable of appreciating that kind of evidence, than any other kind, at its just value? But it is useless to argue against one particular case of the barbarous policy which excludes all evidence that seems in any degree exposed to be untrustworthy. The proofs which will be hereafter∥ adduced of the absurdity of the principle, are proofs of its absurdity in this case, as in every other.

Another curious rule is, that, as a judgment is not evidence against a stranger, the contrary judgment shall not be evidence for him. If the rule itself is a curious one, the reason given for it is still more so:—“Nobody can take benefit by a verdict, who had not been prejudiced by it, had it gone contrary:” a maxim which one would suppose to have found its way from the gaming-table to the bench. If a party be benefited by one throw of the dice, he will, if the rules of fair play are observed, be prejudiced by another: but that the consequence should hold when applied to justice, is not equally clear. This rule of mutuality is destitute of even that semblance of reason, which there is for the rule concerning res inter alios acta. There is reason for saying that a man shall not lose his cause in consequence of the verdict given in a former proceeding to which he was not a party; but there is no reason whatever for saying that he shall not lose his cause in consequence of the verdict in a proceeding to which he was a party, merely because his adversary was not. It is right enough that a verdict obtained by A against B should not bar the claim of a third party C; but that it should not be evidence in favour of C against B, seems the very height of absurdity. The only fragment of a reason which we can find in the books, having the least pretension to rationality, is this,—that C, the party who gives the verdict in evidence, may have been one of the witnesses by means of whose testimony it was obtained. The inconclusiveness of this reason we have already seen.

The rule, that a judgment inter alios is not evidence, which, like all other rules of law, is the perfection of reason, is in a variety of instances set aside by as many nominal exceptions, but real violations, all of which are also the perfection of reason. To the praise of common sense, at least, they might justly lay Edition: current; Page: [172] claim, if they did no more, in each instance, than abrogate the exclusionary rule. But if the rule be bad in one way, the exceptions, as usual, are bad in the contrary way.

One of the exceptions relates to an order of removal, executed, and either not appealed against, or, if appealed against, confirmed by the quarter-sessions. This, as between third parishes, who were not parties to the order, is admissible evidence, and therefore (such is jurisprudential logic) conclusive: the officers, therefore, of a third parish, in which the pauper may have obtained a settlement, have it in their power, by merely keeping the only witnesses who could prove the settlement out of the way till after the next quarter-sessions, or at farthest for three months, to rid their parish for ever of the incumbrance. The reason of this is, “that there may be some end to litigation,”*—a reason which is a great favourite with lawyers, and very justly. Litigation—understand, in those who cannot pay for it—is a bad thing: let no such person presume to apply for justice. One is tempted, however, to ask, whether justice be a thing worth having, or no? and if it be, at what time it is desirable that litigation should be at an end? after justice is done, or before? It would be ridiculous to ask for what reason it is of so much greater importance that litigation between parishes should have an end, than litigation between individuals; since a question of this sort would imply (what can by no means be assumed) that reason had something to do with the matter.

What is called a judgment in rem in the exchequer, is, as to all the world, admissible, and conclusive. The sentence of a court of admiralty, is, in like manner, as against all persons, admissible, and conclusive. So is even that of a foreign court of admiralty. The sentence of ecclesiastical courts, in some particular instances,—this, like the others, is admissible, and, like the others, conclusive. It is useless to swell the list. Equally useless would it be to enter into a detailed exposition of the badness of these several rules. The reader by whom the spirit of the foregoing remarks has been imbibed, will make the application to all these cases for himself.

The law recognises no difference in effect, between the decision of a court abroad, and that of a court at home. The sentence of any foreign court, of competent jurisdiction, directly deciding a question, is conclusive, if the same question arise incidentally between the same parties in this country: in all other cases it is inadmissible. The case of debt, in which it is admissible, but not conclusive, is partially, and but partially, an exception; for even in this case the foreign judgment is, as to some points, conclusive.†

To make no allowance for the different chance which different courts afford for rectitude of decision, would be consistent enough as between one court and another in the same country: in England, at least, the rules of the several courts, howsoever different among themselves, being each of them within its own sphere the perfection of reason, any such allowance as is here spoken of would be obviously absurd: that must be equally good everywhere, which is everywhere the best possible. Of foreign judicatories, however, taken in the lump, similar excellence has not, we may venture to affirm, been ever predicated by any English lawyer, nor is likely to be by any Englishman; for Englishmen, how blind soever to the defects of their own institutions, have usually a keen enough perception of the demerits, whether of institutions or of anything else, if presented to them without the bounds of their own country. Were a consistent regard paid to the dictates of justice, what could appear more absurd than to give the effect of conclusive evidence to the decisions of courts in which nearly all the vices of English procedure prevail, unaccompanied by those cardinal securities—publicity and cross-examination—which go so far to make amends for all those vices, and which alone render English judicature endurable? Yet the rule which, in so many cases, excludes those decisions altogether, errs nearly as much on the contrary side; for, the difficulty of bringing witnesses and other evidence from another country being generally greater than that of bringing them from another and perhaps not a distant part of the same country, there is the greater probability that the decision in question may be the only evidence obtainable.

After what has been observed concerning the admissibility of prior decisions in English law, little need be said on that of prior depositions. Wherever the decision itself is said to be res inter alios acta, the depositions on which it was grounded are so too; and are consequently excluded. In other cases they are generally admissible: though to this there are some exceptions. Happily nobody ever thought of making them conclusive.

[‡Among the causes which have contributed to heap vexation upon suitors on the ground of evidence, one has been the scramble for jurisdiction (i. e. for fees) between the common-law courts, and the courts called courts of equity. Such was the hostility, the common-law courts refused to give credit to whatever was done under authority of their rivals. Depositions in equity were not admissible evidence at common law. When the work of iniquity is wrought by judicial Edition: current; Page: [173] hands, there must always be a pretence; but no pretence has been too thin to serve the purpose. It consists always in some word or phrase: and any one word that comes uppermost is sufficient.

The pretence on this occasion was,—a court of equity is not a court of record. A better one would have been, to have said, it is not a tennis court. The consequence would have been equally legitimate; and the defects of the common-law courts, and the effrontery of the conductors of the business, would not have been placed in so striking a point of view.

With much better reason (if reason had anything to do in the business) might the equity courts have refused the application of courts of record to the common-law courts. In every cause, the evidence, and that alone, is the essence of the cause; in it is contained whatever constitutes the individual character of the cause, and distinguishes it from all other causes of the same species: to a cause, the evidence is what the kernel is to the nut. In a court of equity, this principal part of the cause, though not made up in the best manner, is at any rate put upon record, or, in plain English, committed to writing, and preserved. In a court of law this is never done. The evidence, like the leaves of the Sibyl, is committed to the winds. What goes by the name of the record is a compound of sense and nonsense, with excess of nonsense: the sense composed of a minute quantity of useful truth, drowned and rendered scarce distinguishable by a flood of lies, which would be more mischievous if they were less notorious.

In the court of Exchequer, the same judges constitute one day a court of equity, another day a court of law. What if the occasion for the rejection of the evidence had presented itself in this court? In the hands of an English judge, the jus mentiendi is the sword of Alexander. On the declared ground of iniquity, stopping every day their own proceedings, why scruple to refuse credit to their own acts?]

It is now, however, fully settled, that the answer of the defendant, as well as the depositions of witnesses, in Chancery, are evidence in a court of law; and that “a decree of the court of Chancery may be given in evidence, on the same footing, and under the same limitations, as the verdict of judgment of a court of common law.”*

The exemplifications which we undertook to give of the defects of English law in relation to makeshift evidence, may here end. To what purpose weary the reader with the dull detail of the cases in which casually-written or ex parte preappointed evidence are excluded, with the equally long, and equally dull, list of the cases in which, though exclusion would be just as reasonable (if it were reasonable at all,) admission, and not exclusion, is the rule? To know that the established systems are everywhere radically wrong—wrong in the fundamental principles upon which they rest, and wrong just so far as those principles are consistently applied,—this, to the person who regards the happiness of mankind as worth pursuing, and good laws as essential to happiness, is in a pre-eminent degree important and interesting. But, for one who, by a comprehensive survey of the grand features, has satisfied himself that the system is rotten to the core; for such a person to know that it is somewhat more tolerable in one part than in another part—that principles which are mischievous in all their applications, are a little more or a little less mischievous in one application than in another—that, in this or that portion of the field of law, vicious theories are consistently carried out, and yield their appropriate fruit in equally vicious practice, while in this or that odd corner they are departed from,—would in general be a sort of knowledge as destitute of instruction, as it always is and necessarily must be of amusement.

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BOOK VII.: OF THE AUTHENTICATION OF EVIDENCE.

CHAPTER I.: AUTHENTICATION, WHAT. CONNEXION OF THIS SUBJECT WITH THAT OF PREAPPOINTED EVIDENCE.

In the book having for its subject preappointed evidence,*—in bringing to view the uses or advantages derivable from that kind of evidence, considered as applied to instruments expressive of contracts, taken in the largest sense,—prevention of spurious or falsified instruments, i. e. spurious in the whole or in part, was stated as being of the number of those uses.

The function then considered as belonging to the legislator was, so to order matters, that, in so far as contracts have been entered into, genuine instruments expressive of them shall be in existence; and that spurious instruments, instruments expressive of discourses that were never uttered by the persons by whom they purport, or by some one are pretended to have been uttered, may not be in existence.

So to order matters, as that, when an instrument so framed as above is genuine, it shall be believed to be, and recognised as, genuine; and that, when an instrument purporting or appearing or pretended to be so framed as above, is not genuine, but either spurious in toto or falsified, it shall be understood that it is spurious or falsified; and, in case of falsification, what are the parts in it that are falsified; is another of the legislator’s functions, which remains to form the subject of this book.

On that former occasion, room and demand were seen to exist for something in the way of regulation—something, how little soever in comparison with that which has so commonly been done.

On this occasion, there is no demand for anything whatsoever to be done in the way of regulation: whatever is to be done consists wholly of instruction—instruction from the legislator, delivered for the information and guidance of the judge.

CHAPTER II.: SUBJECT-MATTERS OF AUTHENTICATION, WHAT. MODES OF AUTHENTICATION IN THE CASE OF REAL AND OF ORAL EVIDENCE.

Three main species or parcels have again and again been mentioned, as comprising together the whole possible matter of evidence—real, oral, and written. The same term, authentication, may be employed with reference to each of them: but the import of it, in the three cases, differs to a certain degree, according to the different natures of the subject-matter to which it is respectively applied.

1. In the case of real evidence, to authenticate the evidence is to establish the identity of the body (whatever it be) which is the source of the evidence,—the body, the appearances of which constitute the evidence,—together with the authenticity of those appearances: to make it appear, to the satisfaction of the judge, that the body exhibiting certain appearances at the time of its being produced in court or subjected to the examination of a scientific witness (acting on that occasion in the character of a subordinate and deputed judge,) is the same body as that by which the evidentiary appearances were exhibited in the first instance. 2. That the appearances exhibited by it at the two points of time, and during the intervening interval, are the natural consequences of the principal fact, and have not been either fabricated, or materially altered, either by design or negligence.

In the case of real evidence, safe custody will commonly besides have another object, viz. insuring the existence and forthcomingness of the object—preventing it from being destroyed or lost. But this purpose belongs not to the present head, but to the head of securing the forthcomingness of evidence.

2. In the case of personal oral evidence, to authenticate the evidence is to establish the identity of the person who, in the character of a deposing witness, is subjected to oral examination,—who, in the character of a deposing witness, is admitted to give his testimony in the presence of the judge: to make it appear to the satisfaction of the judge, 1. That he who speaks of himself as being such or such a person, is really that person; 2. That the person who, at the time in question, in presence of the judge, speaks of himself as having been present on a certain past occasion, on which a person known by a certain name was actually present, is that same person; whether, on the occasion in hand, he calls himself, or is called, by the same, or by a different, name.

3. In the case of written evidence, to establish the genuineness of the document is to make it appear, to the satisfaction of the judge, Edition: current; Page: [175] that the document exhibited as containing the discourse expressed by a certain person on a certain occasion, does really contain the discourse of that same person; and (where the occasion is material) that this discourse did really issue from him on that same occasion.

Correspondent to the respective nature of the respective species of evidence, will be the several courses requisite and proper to be taken for establishing their authenticity.

1. The case of real evidence admits of safe custody; an expedient that applies not at all, or not with equally and uniformly unexceptionable propriety, in either of the other cases. For this purpose, a particular sort of person is not unfrequently appointed by law, in contemplation of his presumed trustworthiness with reference to the purpose. He takes charge of the article, keeps it in his possession till the time comes for its being produced, in the character of evidence, before the judge; and it is partly by the fact of his having thus kept it in his custody, partly by the testimony he gives, or is considered as giving, of its having been so kept without any fallacious alteration, that its authenticity is established.

2. The case of personal oral evidence, that is, of a person appearing before the judge to give his testimony, admits not of any appropriate mode of authentication. His being the same person as he who (commonly under the same name) is stated by him as having been present on the occasion in question—been present in the character of a percipient witness—is included of course in the testimony he gives. The fact of his identity (if there be any doubt about it) will, like any other matter of fact, be to be proved or disproved, as the case is, by such evidence of any kind or kinds as the occasion furnishes.*

It is not often that in this case the demand for authentication will present itself. A case the most likely to give rise to doubts, is when, for a purpose innocent or criminal, the witness has, on the two different occasions, called himself, or suffered himself to be called, by different names.†

3. It is in the case of written evidence that the business of authentication admits of the greatest diversity, and demands a proportionable degree of attention.

The task will be found to be attended with very considerable differences, according to the differences of which the nature of the written document in question is susceptible—differences that have already been distinguished by appropriate names. I speak of the different modifications of written evidence that have been already marked out, and separately considered, under the general heads of Preappointed and Makeshift evidence. All these will, in their order, be now for this new purpose brought again to view.

A distinction must here be observed, between evidence of authenticity, and evidence of fairness. Authenticity may be proved by similitude of hands; it may be proved, provisionally at least, ex tenore, with or without the other presumption ex custodiâ. To the question of fairness, none of these media of proof, it is evident, can apply. The document may have been brought into existence by any modification of fraud or force, for any indication that can be afforded to the contrary from any of those sources. A bond is produced in evidence:—the obligor may have been in a state of insanity or intoxication when he executed it: he may have executed it with the fear of a pistol or a dagger before his eyes, or in a state of illegal imprisonment, to which he had been subjected for the purpose. Of none of these modifications will the signature, or the custody of the instrument, or the tenor of it, afford any sort of warning.

CHAPTER III.: MODES OF AUTHENTICATION IN THE CASE OF WRITTEN EVIDENCE.

§ 1.: Topics of inquiry.

On the subject of authentication, as applied to written evidence, two more questions present themselves for discussion: 1. What, with reference to the main end of justice, is, in each distinguishable case, the best, the most trustworthy evidence? in other words, what is the best, with reference to security against deception? or simply thus, what is, in each instance, the most trustworthy mode of authentication? 2. What inferior modes of authentication may, in the several different Edition: current; Page: [176] cases, be admitted in place of the most trustworthy mode?

1. Which is the most trustworthy mode? The authenticity, as above explained, of this or that piece of evidence, is a particular species of fact. Whatever sort of evidence is most trustworthy with reference to facts in general—to facts taken without distinction,—will be so with reference to this. That sort of evidence is the most trustworthy, which will admit of being extracted in the most trustworthy mode of extraction. What mode of extraction is most trustworthy, has been shown at large in the books entitled “Securities” and “Extraction:” oral examination, accompanied with cross-examination, and the other securities naturally and usually attendant on it.

This being the most trustworthy, the most satisfactory, and (with reference to the main end of evidence, security against deception) the best and most eligible, two circumstances concur in preventing it from being employed on all occasions: 1. There are occasions on which it is not obtainable: such is the case where, at the time when the demand for the evidence arises, the witnesses from whose mouth it should have been extracted are not forthcoming. 2. There are causes in which, though obtainable, the employment of this most trustworthy species of evidence would not upon the whole be eligible: Why? Because, if obtianed in this most trustworthy mode, the collateral inconvenience which, in the shape of vexation, expense, and delay, would inevitably result from the extraction of it in this mode, would be more considerable than the inconvenience consisting in what is lost in point of trustworthiness by the difference between the most trustworthy mode, and the next most trustworthy that may be to be obtained free from that collateral inconvenience.

As to unforthcomingness in evidence, the modifications of it, and their respective causes, have already been exhibited to view. Modifications, irremovable and removable: Causes of irremovable unforthcomingness, death, and incurable insanity: Causes of removable unforthcomingness,—1. Insanity or other indisposition not incurable; 2. Expatriation; 3. Latency (see Vol. VI. p. 419.)

§ 2.: Modes of authentication in the case of private contractual evidence.

I proceed to bring to view such modes or sources of authentication as present themselves in regard to the different species of written evidence: beginning with private contractual evidence. It is that which affords the greatest variety of modes. The order in which I arrange them is that of superiority: meaning by superiority, preferability, on the score of trustworthiness;—the most trustworthy standing first upon the list.

I. Authentication by direct evidence.

1. Testimony given by the attesting witness or witnesses. The greater the number of such witnesses, and the larger the proportion of them that appear in the character of deposing witnesses, the more satisfactory, of course, will be the proof. As to the mode of taking the deposition—the mode of examination,—nothing particular requires, on this occasion, to be said of it. On this occasion as on all others, it will be less and less satisfactory, according as it varies from that which is considered as the most satisfactory, the mode so often described.*

2. Testimony of non-attesting witnesses—representing themselves as having been percipient witnesses of the act of recognition. In that case, the perception taken by any such non-attesting percipient witness may have been as complete as it naturally will have been in the case of an attesting witness; or it may be less and less complete, in a variety of gradations. A man may have seen and heard what was passing through a chink or keyhole; he may have heard without seeing, without seeing the act of recognition, he may have seen the instrument in the first instance without the signature, and presently after with the signature; and so forth. In this way, the direct evidence may insensibly degenerate into circumstantial evidence.

3. Testimony of the party or parties—all of them, or any inferior proportion of the number. Proof from this source, (supposing all apprehension of mendacity out of the question,) will on all other grounds be preferable to that of extraneous witnesses, attesting or non-attesting. The transaction was their own: they are the less exposed to the danger of having forgotten it. The dispute relative to the transaction is their own: they need the less grudge the trouble of coming forward to give their testimony in relation to it. But (especially in the case where the death or unforthcomingness of one of the parties would leave mendacity on the other side without controul) it is partly on account of the danger of mendacity from such interested evidence, that recourse is had to the less suspected evidence of extraneous witnesses: and to parties, as well as to extraneous witnesses, it may happen at any time to die, or to be on any other account unforthcoming.

If the testimony of attesting witnesses is produced, the testimony of non-attesting witnesses will naturally be considered as superfluous. But if the authenticity be disputed, and be rendered more or less doubtful by the evidence or arguments adduced by the adverse party, and at the same time testimony of non-attesting witnesses happens to present itself; it cannot, it is plain, on the ground of superfluity, be excluded.

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If, upon the face of it, the instrument appears to have been furnished with attesting witnesses, non-attesting witnesses cannot reasonably be tendered, unless some special cause (as hereinafter mentioned) be assigned for the non-production of any attesting witness. For, the attesting, the preappointed witnesses,—being, upon the face of the transaction, the chosen, and the only chosen witnesses,—cannot therefore but be regarded as more trustworthy than any witnesses taken without choice; unless some special reason be assigned, to show how it happened that this or that other witness, being also present, and being, by station in life, or character, more trustworthy than this or that attesting witness, was notwithstanding not called upon to put himself upon the list.

II. Authentication by circumstantial evidence.

4. The handwriting proved by similitude of hands, asserted by the testimony of a witness, who on other occasions has observed the characters traced by the party in question, while in the act of writing. Presumption from similitude of hands established by view of the act of writing. Presumption ex visu scriptionis.

5. The handwriting proved by similitude of hands, asserted by a witness, who, without having ever seen the party write, is sufficiently acquainted with his hand by correspondence: i. e. by having received from him letters, purporting (whether by their signature or by their contents) to be of his handwriting;* or by having seen other writings, which, by indications sufficiently persuasive, appeared to have been written with his hand. Presumption from similitude of hands established by view of other writings of the same hand: presumption ex scriptis olim visis.

6. The handwriting proved by similitude of hands, asserted by a witness, who, without any such previous acquaintance with the handwriting of the party as above, pronounces the handwriting in question to be the handwriting of the party, on a comparison made of it with other specimens of his handwriting, now, for the purpose of the comparison, produced to him for the first time. Presumption from similitude of hands established by comparison pro re natâ: or more briefly, presumption from comparison of hands—presumption ex comparatione scriptorum, or ex scripto nunc viso.

The two former modes may be characterized by the common description of authentication by acquaintance: the latter may be termed authentication by scientific opinion. The persons called in to give their opinions on a point of this sort, depose in the character of scientific witnesses. They will naturally be persons who, by office, profession, or pursuit, have been in the habit of regarding handwritings with a particular degree of attention, with a view to their authenticity or unauthenticity, their similitude or dissimilitude.

The handwriting of the party may (it is evident) form as proper a subject of authentication as that of any attesting witness. It is so even in a more direct way. It is only for the sake of establishing the concurrence of the party, that the attestation and deposition of the witness are called in. Suppose the authenticity of the party’s signature sufficiently established, that of the witness’s signature is not worth considering. The causes of suspicion which apply (as above) to the testimony of a party, extend not to his signature: the testimony to the presumed authenticity of the signature of the party is not his own interested testimony, but the uninterested testimony of an extraneous witness.

7. The authenticity of the instrument (the whole taken together,) inferred from the consideration of the person or persons in whose possession or custody it has been, from the apparent time of its origination,† to the time in hand, or such part of the intervening interval through which the possession of it can be traced. Presumption ex custodiâ.‡

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8. The authenticity of the instrument (the whole taken together,) inferred from the consideration of its tenor, or say contents. Presumption ex tenore.

9. The authenticity of the instrument (the whole taken together,) exhibited by a subsequent indorsement: an entry made upon the back or other vacant part of the paper or parchment, in a hand purporting to be that of some official person, and expressive of the fact of its having, in the character of an authentic instrument, been subjected to his inspection in virtue of his office.* Presumption ex visu officiali.

By this species of evidence, the question in regard to authenticity is rather shifted off, than solved. Superinduced upon the original instrument is another piece of writing, which, as being a writing, requires authentication, as well as the original instrument. An indorsement of this kind may be considered as a supplemental written attestation added to the instrument, at a subsequent point of time to that of the execution of the instrument.

The memorandum in question, was it really written by or by the order of the person, by or by whose order it purports, upon the face of it, to have been written? It is only by circumstantial evidence, that to this question an answer can with propriety (at least in case of dispute) be given. By direct evidence, yes; if he be alive and forthcoming: but if he be, then, at an earlier or later stage of the inquiry, not any such circumstantial evidence, but this direct evidence, will, for the purpose in question, be the most satisfactory, and therefore the most proper, and ultimately the only proper, evidence.

In ancient times, when, by various circumstances connected with the immaturity of the human mind, forgeries were rendered much more easy and much more frequent than at present,—an incident not unfrequently exemplified is that of an official person visiting the written instruments deposited in this or that official receptacle, and (to serve as proof of their genuineness) writing or causing to be written upon each, a memorandum to the effect here spoken of.

Of the sort of apparent certificate or judgment here in question, the effect is, to declare the opinion of somebody, that the instrument on which it is marked was genuine—was not a forged one. If the principal, the substantive, document, be not incapable of having been taken for the subject or made the product of an act of forgery, neither is this subsidiary, this adjective, instrument. But forasmuch as, to each of any number of forgeries (especially if so many different hands, purporting to have been written at so many different times, be taken for the objects of imitation,) a separate set of difficulties stand opposed; the consequence is, that to any such apparent certificate if can scarcely happen to be altogether destitute of probative force. Some probative and authenticative force a document of this sort will always have, whereby, to the amount of it, it will make an addition to the intrinsic self-probative force possessed by the principal instrument itself—the evidence or presumption ex tenore.

As in the case of the original subject-matter, so in the case of this adjunct, evidence ex tenore, with evidence ex custodiâ for the corroboration of it, will in general be the only evidence on the ground of which a judgment concerning the genuineness of it can be formed.

To these it may now and then happen that the evidence ex collatione may be addable; viz. where, in the same repository, or in other accessible repositories, manuscripts which by their physical tenor appear to be of the same handwriting are to be found—manuscripts capable of being employed in the character of standard scripts.

In the three cases where the conclusion is founded on a supposed similitude of hands, the superiority in quality ascribed to the prior in order cannot with propriety be ascribed to it but under certain conditions and limitations.

1. As between presumption ex visu scriptionis, and presumption ex scriptis olim cognitis. If, of two witnesses, each has, within the same compass of time, seen an equal number (ten suppose) of scripts derived from the same hand,—of which two witnesses, one only had, in the instance of one or more of these scripts, been an eye-witness of the act of writing,—the evidence of him by whom that advantage had been possessed, could not but, in a theoretical point of view, be regarded as the better evidence. Why? Because the mode of cognizance that fell exclusively to his lot, is, with reference to each such object of comparison, of the nature of direct evidence: the other is but presumptive, circumstantial evidence. In a practical view, however, the difference can seldom be worth regarding; especially if the way in which the cognizance was obtained Edition: current; Page: [179] was that of epistolary correspondence. When, from an individual more or less known to me in person or by reputation, I receive a letter, bearing his signature—that is, when I receive a letter with a signature purporting to be that of a person known to me as above,—on what supposition can such a letter have emanated from any other hand than his? On no other than that of forgery: a crime not to be presumed, or so much as suspected, without special ground, in any single instance: much less, in a number of unconnected instances.

Suppose, on the other hand, the writings of the same hand seen by one witness in ten instances, without his seeing the act of writing in any of those instances; while, by the other witness, the act of writing was seen in one instance only, he not having seen any other writings of the same hand: in this case, the evidence of him who had never seen the act of writing, would surely be regarded as the most satisfactory of the two.

So likewise in the third case, as compared with the two former ones: the case of scientific evidence, as compared with authentication under favour of opportunities derived from acquaintance. If, in respect to qualification for forming a right judgment, any advantage be afforded by opportunities derived from acquaintance, it can only be by reason of the comparatively greater number of opportunities. The number of opportunities of this sort derivable from personal acquaintance may have been considerable in any degree, and, upon a general view of the subject, will naturally appear indefinite. The number of data of this kind put into the hands of a scientific witness on the occasion in question, or on any one occasion, for any one particular purpose, will seldom be considerable, and will always be definite. But—suppose the opportunities of observation equal in every respect, as between the witness speaking from particular acquaintance, and the witness speaking from general and appropriate science—the superiority naturally belonging to the latter, by reason of the superior intensity of attention, and the superiority of appropriate intelligence naturally resulting from it, will be sufficient in general to bestow upon the value of his opinion a decided superiority. The witness speaking from acquaintance has (for example) received from the individual whose hand is in question, ten letters, and no more: and that, suppose, in the compass of two years. Let these same letters be put all at once into the hands of a scientific witness, together with the writing to be judged of, the advantage afforded him by his science must be inconsiderable indeed, if it does not render his opinion on the subject of more value than that of the unscientific witness, judging from particular acquaintance.

The case in which the presumption from custody is most apt to be called in, is that where the deed to be authenticated comes under the notion of an ancient deed. Antiquity, in this respect, not being designative of any particular length of time, to the exclusion of all others,—to give precision to our conception on the subject, it will be necessary to particularize some determinate length of time, beyond which (reckoning from the day of the exhibition of the deed in evidence) it shall be deemed an ancient one,—say, therefore, thirty years. Of the lapse of such a length of time, a natural and frequent consequence is, that all means of authentication by particular acquaintance shall, to a person in the situation of the party having occasion to authenticate the deed, be unattainable. Here, then, comes in the presumption from custody. Here is a deed signed, having, for the name of one of the parties, the name of one of my grandfathers. I myself never saw him; consequently, never saw him write. I can think of no person now living, who, to my knowledge, ever saw my grandfather, or had any correspondence with him. But upon the death of my father, on taking a survey of his effects, I found in a box this amongst other deeds.

The presumption ex tenore is the medium authenticationis that remains to be resorted to when all others are unattainable: it is a proof, and the only proof, that can never be wanting. The presumption ex custodiâ includes it, and, implicitly at least, is grounded on it. When I conclude the granter of that deed to have been my grandfather, it is not merely because it was once in the custody of my grandfather, but because, from the tenor of it, it is a deed in which my grandfather, in his time, could not but have had an interest. But, though the presumption ex custodiâ cannot present itself unaccompanied by the presumption ex tenore, yet the latter may without the former: and it is for this reason that the two sources of authentication are stated as separate. By accident, it might have happened to the deed to have been found in a receptacle not within my custody: by accident, it might have been found in a public road or street, into which it might have fallen by the accidental disruption of a package in a vehicle to which it had been consigned: by accident, it might have been found in a chandler’s shop, into which it had found its way by negligence, amidst a bundle of waste papers.

By this single presumption, unassisted even by the presumption ex custodiâ, deeds and other scripts are, in various cases, considered as sufficiently authenticated, under the actually established system of jurisprudence. They are so, for example, in English jurisprudence. A deed which is considered as sufficiently authenticated by the presumption ex tenore, is, in the language of that law, said to prove itself. Such is the phrase, in the language Edition: current; Page: [180] of one of those classes of men whose self-complacency is never so exulting as when they triumph, or seem to triumph, over reason. To have said, the authenticity of a deed may be presumed in certain cases from the tenor of it, would have been to have stated, not only the decision itself, but the consideration on which its claim to be regarded as a proper one depends. In the expression, in certain cases a deed proves itself, a decision to the same effect is expressed; but, in the place of the reason, it gives a paradox—an absurdity, if not in reality, in appearance—a sort of appropriate and professional figure of speech, of the same stamp with those by which, in so many other instances, these professional men seek to hide their meaning from the view of other men, and on which they love to found their claim to the praise of superiority in science.

§ 3.: Modes of authentication in the case of written official and casually written evidence.

The principal points of consideration being thus stated under the head of private contractual evidence,—being that which affords them in the greatest variety, the two remaining classes of written evidence—official evidence and casually written evidence, will give us but little trouble.

I. Written official evidence. If, in the case of private contractual evidence,—evidence issuing from an interested and thence suspected source, authentication ex tenore appears satisfactory, much more may it in the case of official evidence—evidence from a source, generally speaking, untainted by interest, and therefore unsuspected. In the case of private contractual evidence, the circumstance of custody, though material in itself, and, for the sake of one or other of the parties, necessary perhaps to be brought to view, contains in it matter of suspicion as well as confidence. The deed, according to my statement, has, from the time of the date of it, been either in my own custody, or in that of some progenitor or predecessor of mine; and this custody I allege as an indication serving to show the person appearing upon the face of the deed as a party to it, to have been really so Good: supposing my statement in this behalf to be true; but supposing the deed fabricated or fraudulently altered by my hand, will not its having been in my custody be a still more necessary consequence? If, instead of having been in a custody thus open to suspicion, it had been in the joint custody of a set of official persons not capable of deriving any advantage from any such forgery, the presumption ex custodiâ could not but be much clearer of suspicion, much more satisfactory and conclusive. Hence, as already intimated, one of the main advantages and uses of official custody for the purposes of official evidence.*

2. Casually written evidence. The same modes of authentication which apply to the two just-mentioned modifications of written evidence, apply in general to this. Two exceptions alone, and those altogether obvious, present themselves. Attesting witnesses are out of the case: the characteristic property of preappointed evidence, and therefore of private contractual evidence, if exhibited according to preappointed forms, being to exhibit this source of authentication; that of casually written evidence, not to exhibit it.†

Persons casually present may happen to have been percipient witnesses of the act of writing, in the case of the unsolemn document, as in the case of the solemn one; but writing in general is not a social work. Epistolatory writing affects solitude; and so does the act of literary composition, as well as the act of making memorandums for self-regarding and domestic use. This is more particularly and obviously the case with regard to that large division of casually written evidence, which is most apt to be exhibited in causes of a penal nature, and consists of documents obtained through the indiscretion or negligence of the writer, and produced against him in the character of confessorial evidence.

Oral examination of the alleged writer of the script, is evidently, in a general point of view, the most eligible mode of authentication. It is plainly so in the relation of a means to the main end—the discovery of the truth. Supposing the writing to be mine, there can be no one of whom it can be so certain that he knows whose writing it is, as myself—that one percipient witness, who, in the nature of things, cannot fail to have been a percipient witness of the act. Other witnesses to it there may have been, or not been, as the case may be.

This first choice remains at the same time susceptible of exceptions; partly on the ground of practicability, partly on the ground of eligibility.

1. The writer himself may be unamenable to the commands of justice: either for ever, as in case of death, or incurable insanity; or for a time, certain or uncertain, as in case of expatriation, latency, sickness.

2. The writer may, in respect of the fact in question, be bent against the declaration of the truth. This fact may either have been already ascertained by experience, or may only Edition: current; Page: [181] be presumed, or deemed presumable: presumable, either on general grounds, from his station in the cause; as when he is defendant in a cause of a highly penal nature, and the instrument (supposing it genuine) is a document capable of serving as conclusive evidence of his delinquency: or on particular grounds; as, for example, his moral character,—particularly in respect of veracity, the quality particularly in question in this instance.

3. In respect of delay, vexation, or expense, the choice of the writer himself for the authenticating witness may be attended with a degree of inconvenience, such as, either in the whole or in part, may be avoided by resorting to some other witness.

CHAPTER IV.: MODES OF DEAUTHENTICATION IN THE CASE OF WRITTEN EVIDENCE.

In the question relative to authenticity, the affirmative proposition is, as already observed, except in here and there an extraordinary instance, the true one. The affirmative is, therefore, under that exception, the proposition that comes to be proved: the negative, not; except in the extraordinary instances just spoken of. But, since instances of this description, how extraordinary soever, are unhappily found to exist, hence an operation opposite to authentication comes sometimes to be performed. Correspondent, in good measure, to the list of modes of authentication, will consequently be the list of modes of deauthentication. In the main, they will consist of the negation, or the reverse, of the modes of authentication: but with some variations and additions, as the tenor of them will show.

Modes of deauthentication:—sources from which a persuasion that the document in question is spurious or falsified, may be obtained.

2. Testimony (disaffirmative) of non-attesting witnesses; i. e. of persons not mentioned in the instrument as attesting witnesses.

3. Testimony (disaffirmative) of the party against whom the document is produced, and who denies his having authenticated it; denies the handwriting to be his; or, if signed as if by him, denies the signature to be his signature.

4. Testimony (disaffirmative and confessorial) of the party by whom it is produced (viz. the party in the cause;) and who, on being cross-examined or otherwise, confesses, either that he himself bore no part in the document in question, or that the other supposed party to the transaction (whether a party to the suit or no) bore really no part in it; in a word, that in one way or other it is spurious; or that, if there are certain portions of it in which they respectively bore a part, there are others in which they respectively did not bear any part: that is, that, in respect of a certain portion or portions of it, it has been falsified.

5. Hearsay evidence: testimony of any person whatever (attesting witness, non-attesting witness, or party,) declaring himself to have heard (on the part of an attesting witness, a non-attesting witness, or a party, by or in whose favour the document is produced) a discourse amounting to an assertion of its being spurious, or having been falsified.*

II. Circumstantial evidence:—

1. Dissimilitude of hands, deposed to ex visu scriptionis.

2. Ditto, ex scriptis olim cognitis.

3. Ditto, ex scripto nunc viso; the document in question being now inspected by some scientific eye, and, on being confronted with other scripts indubitably from the same pen, pronounced dissimilar.

4. Ditto, from the appearance of its being a feigned hand.

5. Presumption ex custodiâ: the party producing it, or a person through whose hands it has passed, being the person who in case of success would be a gainer by having fabricated or falsified it, or procured it to be fabricated or falsified, to the effect suspected.

6. Presumption ex tenore: marks of spuriousness or falsification apparent on the face of it.

Indications of spuriousness or falsification, apparent on the face of a written discourse, may be presented either by the physical entities of which the signs are composed, or by the consideration of the discourse signified.

I. Indications afforded by the paper, parchment, or other substratum, on which the colouring matter is laid:—

1. Paper, if of a date known to be posterior to the date apparent on the face of the instrument, a certain proof of spuriousness.

2. Paper,—if in any part the surface exhibit Edition: current; Page: [182] a roughness and comparative thinness, such as would be produced by an erasure (i. e. the scratching of an edged or pointed instrument,)—a cause for suspecting falsification.

3. Paper,—if, in any part which appears to have been written upon (as, for example, in the middle of a line of writing,) a stain appears, such as might have been produced by a solvent, applied for the purpose of dissolving the ink or other colouring matter of which the characters are composed,—another cause for suspecting falsification.

N. B.—Indications Nos. 2 and 3, apply alike to parchment, vellum, or any other substratum consisting of skin.